Brown v. Warden, Chillicothe Corr. Inst., 1:17-cv-583

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JAMES E. BROWN, Petitioner, v. WARDEN, CHILLICOTHE CORRECTIONAL INSTITUTION, Respondent.

No. 1:17-cv-583

United States District Court, S.D. Ohio, Western Division

October 4, 2021

McFarland, J.

REPORT AND RECOMMENDATION

Karen L. Litkovitz, United States Magistrate Judge.

Petitioner an inmate in state custody at the Chillicothe Correctional Institution, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 20, 2018 this action was stayed so that petitioner could exhaust his state court remedies. (Doc. 10).

Petitioner reinstated the action and filed an amended petition. (See Doc. 12, 13, 19, 20). This matter is now before the Court on the petition, as amended (Doc. 19-1) respondent's return of writ (Doc. 22), and petitioner's reply (Doc. 46).

For the reasons stated below, the petition should be denied.

I. FACTUAL BACKGROUND

The Ohio Court of Appeals set forth the following set of facts leading to petitioner's conviction and sentence:^[1]

On February 27, 2013, Ohio State Highway Patrol Trooper Nick Lewis observed the driver of a car look away from him. Suspicious of this behavior, Lewis followed the driver (appellant) and observed him cross the white “fog lane” by at least a tire width for a distance of thirty to forty yards. Trooper Lewis stopped the car. During his contact with appellant, Trooper Lewis detected the odor of marijuana. Subsequently, the officer took appellant into custody and eventually found drugs in the vehicle.

(Doc. 21, Ex. 15).

II. PROCEDURAL HISTORY

State Trial Proceedings

On April 17, 2013, the Scioto County, Ohio grand jury returned a seven-count indictment charging petitioner with two counts of trafficking in drugs, four counts of possession of drugs, and one count of tampering with evidence. (Doc. 21, Ex. 1). Petitioner, through counsel, entered a plea of not guilty to all charges. On May 7, 2013, petitioner executed a waiver of time to June 27, 2013. (Doc. 21, Ex. 2).

Petitioner filed a motion to suppress all evidence obtained from the traffic stop on the ground that the stop was initiated without probable cause. (Doc. 21, Ex. 3). Following a hearing, the trial court overruled the motion on June 17, 2013. (Doc. 21, Ex. 4).

On June 19, 2013, the prosecution filed a motion to continue, which was granted by the trial court. (Doc. 21, Ex. 5). The trial was continued to July 22, 2013. (Doc. 21, Ex. 6). On July 3, 2013, a final continuance was granted at the request of defense counsel due to a scheduling conflict. (Doc. 21, Ex. 7, 8). The case was continued until October 15, 2013.

Prior to trial, petitioner filed a motion to dismiss the charges for failure to bring petitioner to trial within the time required by Ohio Rev. Code § 2945.71. (Doc. 21, Ex. 9). The trial court overruled the motion.

On October 15, 2013, following a jury trial, petitioner was found guilty of two counts of trafficking in drugs and four counts of possession of drugs. On the same date petitioner was sentenced to a total aggregate prison sentence of sixteen years in the Ohio Department of Corrections. (Doc. 21, Ex. 10).

Direct Appeal

Petitioner appealed his judgment of conviction and sentence to the Ohio Court of Appeals. Petitioner, through different counsel than at trial, raised the following two assignments of error in his appellate brief:

1. The trial court erred in failing to dismiss the charges against Appellant Brown when he was denied his right to a speedy trial pursuant to R.C. 2945.71. Additionally, the failure to provide a speedy trial is a violation of Brown's fundamental rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution.

2. The trial court erred in denying Appellant Brown's Motion to Suppress as the statements made by Brown and the items obtained from the search were elicited in violation of his constitutional rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.

(Doc. 21, Ex. 12). On March 25, 2016, the Ohio Court of Appeals overruled petitioner's assignments of error and affirmed the judgment of the trial court. (Doc. 21, Ex. 15). Petitioner filed a pro se motion for reconsideration, which was overruled by the appeals court on May 11, 2016. (Doc. 21, Ex. 16, 18).

Ohio Supreme Court

On June 24, 2016, petitioner filed a pro se notice of appeal to the Ohio Supreme Court. (Doc. 21, Ex. 19). In his memorandum in support of jurisdiction, petitioner raised the following two propositions of law:

Proposition of Law I: The Appellate Court Errors to the Detriment of the Appellant when it does not independently determine appellant's application for Reconsideration, which requires De Novo Review.

Proposition of Law II: The Appellate Court Errors to the Detriment of the Appellant when it failed to independently review appellant's Reconsideration Motion on the issue of Credibility of The States Witness.

(Doc. 21, Ex. 20). On October 5, 2016, the Ohio Supreme Court declined jurisdiction of the appeal. (Doc. 21, Ex. 22).

Post-Conviction Proceedings

Meanwhile, on December 20, 2013, during the pendency of his direct appeal, petitioner filed a pro se motion to vacate illegal sentence pursuant to Ohio Crim. R. 57(B). (Doc. 21, Ex. 23). On February 19, 2014, the trial court overruled the motion for lack of jurisdiction. (Doc. 21, Ex. 25).

Petitioner also filed a petition to vacate or set aside judgment pursuant to Ohio Rev. Code § 2953.21, which was denied by the trial court on December 21, 2017. (Doc. 21, Ex. 26, 29, 31). Petitioner raised the following five claims in the petition:

1. Petitioner was deprived of his Sixth Amendment right to counsel as his trial counsel was ineffective as Trial Counsel did not engage the services of B.C.I. Laboratory Technician to assist in the Petitioner defense.

2. Petitioner was deprived of his Sixth Amendment Right to Counsel as trial counsel was ineffective as trial counsel did not engage the services of a certified D.N.A. Expert to assist in the Petitioner defense.

3. Petitioner was deprived of his Sixth Amendment Right to Counsel as his trial counsel was ineffective as trial counsel did not engage in the services of a video and audio expert to assist in the Petitioner defense, nor did trial counsel make any effort to file a motion to make use of the video and audio.

4. Petitioner was deprived of his Sixth Amendment Right to Counsel as his trial counsel was ineffective by not bringing to light evidence relating to the Tampering with Evidence count (count 7) of the state's indictment in the light of the not Guilty Verdict by the Duly Empaneled Jury.

5. Petitioner was deprived of his Sixth Amendment Right to Counsel as his trial counsel was ineffective as trial counsel did not provide an Effective Discovery required by Criminal Rule 16, and therefore violated Petitioner Fifth, Sixth, and Fourteenth Amendment of the U.S. Constitution and Article 1 Section 10 and 16 of the Ohio Constitution.

(Doc. 21, Ex. 26). The trial court found that the petition was untimely and barred by the doctrine of res judicata. (Doc. 21, Ex. 31 at PageID 298). Petitioner unsuccessfully appealed the decision in the Ohio Court of Appeals and Ohio Supreme Court. (Doc. 21, Ex. 32, 33, 36, 38, 39, 40, 41). The Ohio Supreme Court declined jurisdiction over petitioner's appeal on June 12, 2019. (Doc. 21, Ex. 41).

Federal Habeas Corpus

On June 25, 2019, petitioner reinstated the instant federal habeas corpus action. (Doc. 13). Petitioner subsequently filed an amended habeas corpus petition raising the following two grounds for relief:

GROUND ONE: Trial court erred in denying petitioner's motion to dismiss.

Supporting facts: The trial court erred in failing to dismiss the charges against Brown when he was denied his right to a speedy trial. Additionally this failure to provide a speedy trial is a violation of Brown's fundamental rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Section 10, Article I of the Ohio Constitution.

GROUND TWO: The trial court erred in denying Brown's motion to suppress when the evidence collected was the result of an unlawful detention.

Supporting facts: The trial court erred in denying Brown's motion to suppress as the statements made by Brown and the items obtained from the search were elicited in violation of his constitutional rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution.

(See Doc. 19-1).^[2]Respondent has filed a return of writ in opposition to the petition, to which petitioner has replied. (Doc. 22, 46). According to respondent, petitioner's grounds for relief are without merit or not cognizable in federal habeas corpus.

III. THE PETITION SHOULD BE DENIED.

In this federal habeas case, the applicable standard of review governing the adjudication of constitutional issues raised by petitioner to the state courts is set forth in 28 U.S.C. § 2254(d). Under that provision, a writ of habeas corpus may not issue with respect to any claim adjudicated on the merits by the state courts unless the adjudication either:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d).

“A decision is ‘contrary to' clearly established federal law when ‘the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on...