Boddie v. Warden

HOWARD BODDIE, JR., Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:13-CV-1243

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

February 25, 2015

JUDGE ALGENON L. MARBLEY

MAGISTRATE JUDGE KEMP

ORDER and REPORT AND RECOMMENDATION

Petitioner Howard Boddie, Jr., brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the instant Petition, Respondent's Return of Writ, Petitioner's Reply and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.

Petitioner's Motion for Leave to Supplement Traverse, with the arguments submitted therein in support of his claims, see ECF 15, is GRANTED. His request for judicial notice see id., is DENIED.

I. Facts and Procedural History

The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:

Appellant was indicted on one count of having a weapon while under disability. The charge is a third-degree felony. He pleaded not guilty to the charge, and the trial court appointed an attorney to represent him because he wasindigent. Before trial, however, appellant complained about his attorney's performance. The trial court refused to appoint another attorney, and appellant kept his attorney rather than represent himself.

At trial, Karen Monroe testified as follows. Monroe dated appellant, and they shared an apartment. On February 23, 2008, Monroe saw appellant in the apartment with a gun, and she left because she was scared. When she returned later that day, appellant pointed his gun at her and started shooting. Monroe called the police. Appellant jumped out a window and landed on the roof of the porch. The police arrested appellant and took him to jail. Appellant told Monroe in a letter from jail that " '[a]fter we get these charges dismissed, we never have to worry about that weapon again.' " (Tr. 98-99.) He also previously admitted to being convicted of aggravated burglary in the 1980s. Lastly, Monroe identified state's exhibit A as appellant's gun.

Columbus Police Officer Troy Hammel responded to Monroe's call for help, and he testified that bullet casings were inside her apartment. He also said that he found appellant on the roof of the porch and that a gun was four to six feet away from appellant. Hammel identified state's exhibit A as that gun. Columbus Police Officer Phillip Jackson testified that there were multiple bullet holes on the walls where the shooting occurred. Mark Hardy, a forensic scientist with the Columbus Police Department, tested the gun and bullet casings that were recovered after the shooting. He testified that the gun was operable and that the bullet casings were fired from that gun.

Lisa Beck is employed with the Identification Bureau at the Franklin County Sheriff's Department, and she testified as follows. Beck has been in her position for nine years, and she has compared "[t]housands" of fingerprints as part of her job. (Tr. 240.) The prosecutor asked Beck to discuss the different ways fingerprints are collected, and defense counsel objected. The parties had a discussion off the record, and Beck continued with her testimony. The prosecutor asked Beck to compare appellant's fingerprints, which were taken in court, with the fingerprint of a Howard Boddie, Jr., taken in August 1987. Beck said the fingerprints matched.

Beck noted that appellant was fingerprinted in August 1987 after he was incarcerated in the county jail for an aggravated burglary arrest. Beck said that the fingerprint was on a record containing appellant's physical characteristics and military history. She indicated that her employer, the identification bureau, creates a record for each county jail inmate, and she said that the records are never destroyed. Beck identified state's exhibit E as a copy of the 1987 record, and she said that the exhibit was "true and accurate." (Tr. 241.) The trial court admitted the exhibit into evidence with no objection from defense counsel. The prosecutor also moved to admit a certified copy of a judgment entry indicating that a person named Howard Boddie, Jr., was convicted of aggravated burglary in May 1988, and the trial court admitted the entry into evidence.

On cross-examination, Beck acknowledged that she has never been declared a fingerprint expert. She noted, however, that she took classes on fingerprint comparison and that she previously compared fingerprints while testifying in court. Defense counsel subsequently argued that Beck was not qualified to compare the fingerprints taken in court with the 1987 fingerprint. The trial court concluded, however, that Beck "had enough training" to make that comparison. (Tr. 266.)

At the close of the evidence, defense counsel moved for an acquittal pursuant to Crim.R. 29(A). As above, defense counsel challenged Beck's fingerprint comparison. The trial court concluded that the jury was permitted to consider Beck's testimony, however, and it denied the motion for acquittal. Defense counsel also criticized Beck's fingerprint comparison during closing argument. Afterward, the jury found appellant guilty of having a weapon while under disability.

II. ASSIGNMENTS OF ERROR

Appellant appeals, and his counsel assigns the following as error:

[I.] HOWARD BODDIE JR. WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS BECAUSE TRIAL COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO LISA BECK GIVING HER EXPERT OPINION ON THE IDENTIFICATION AND COMPARISON OF FINGERPRINTS WHEN SHE WAS NOT AN EXPERT ON FINGERPRINT COMPARISON.

[II.] HOWARD BODDIE JR. WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS BECAUSE TRIAL COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO THE ADMISSION OF STATE'S EXHIBIT "E" OR ANY DISCUSSION REGARDING THE ORIGINAL DOCUMENT P[UR]PORTING TO CONTAIN AN ORIGINAL PRINT OF APPELLANT AS NEITHER THE ORIGINAL DOCUMENT OR THE COPY WERE PRODUCED BY A RECORDS CUSTODIAN OR WERE SELF-AUTHENTICATING.

[III.] THE TRIAL COURT VIOLATED HOWARD BODDIE, JR.'S R[I]GHTS TO DUE PROCESS AND A FAIR TRIAL WHEN IT ENTERED A JUDGMENT OF CONVICTION FOR HAVING WEAPONS WHILE UNDER DISABILITY WHICH WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.

[IV.] THE TRIAL COURT ERRED IN OVERRULING THE DEFENDANT'S RULE 29 MOTION AS THERE WAS NOT SUFFICIENT EVIDENCE TO CONVICT THE DEFENDANT.

This court also granted appellant leave to file a supplemental brief, pro se, in which he asserts the following assignment of error:

APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL FOR COUNSEL'S FAILURE TO INVESTIGATE VARIOUS REPORTS IN CONJUNCTION TO PLAINTIFF'S WITNESS KAREN MONROE AND OTHER PERTINENT INVESTIGATIONS[ .]

On November 27, 2012, the appellate court dismissed Petitioner's appeal. State v. Boddie, No. 12AP-74, 2012 WL 5945946 (Ohio App. 10^th Dist. Nov. 27, 2012). On March 13, 2013, the Ohio Supreme Court denied the appeal. State v. Boddie, 134 Ohio St. 3d 1488 (Ohio March 13, 2013).

On December 20, 2013, Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.¹ He asserts that he was denied effective assistance of counsel because his attorney failed to object to admission of fingerprint evidence and conduct adequate pre-trial investigation, including locating and calling defense witnesses, challenging his constructive possession of the firearm and determining the validity of his prior felony conviction underlying the charge (claim ones, two and five); that his conviction is against the manifest weight of the evidence (claim three); that the evidence is constitutionally insufficient to sustain his conviction (claim four). Petitioner has attached various letters and documents in support of his allegations. See Reply, ECF 14, PageID# 676-699. It is the position of the Respondent that Petitioner's claims are procedurally defaulted or without merit.

II. Procedural Default

In recognition of the equal obligation of the state courts to protect 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 fairly to present those claims to the highest court of thestate for consideration. 28 U.S.C. § 2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present the claims, his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). If, because of a procedural default, the petitioner can no longer present his claims to a state court, he has also waived them for purposes of federal habeas review unless he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107 ;Wainwright v. Sykes, 433 U.S. 72, 87 (1977).

In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is precluded by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). "First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule." Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural forfeiture is an adequate and independent state ground on which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the...