Canada v. Buchanan

MARCUS A. CANADA, Petitioner, v. TIMOTHY BUCHANAN, Warden, Noble Correctional Institution, Respondent.

Case No. 2:17-cv-1014

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

May 6, 2019

Chief Judge Edmund A. Sargus, Jr.

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is a habeas corpus case, brought by Petitioner Marcus Canada pro se, to obtain relief from his convictions in the Franklin County Court of Common Pleas and consequent sentence. The case is ripe for decision on the Petition (ECF No. 1), the State Court Record (ECF No. 4) and the Return of Writ (ECF No. 5). Although Chief Magistrate Judge Deavers set a reply date of twenty-one days after the Return (ECF No. 2, PageID 67), Petitioner has not filed a reply and the time to do so expired February 12, 2018.

Litigation History

A Franklin County, Ohio, grand jury indicted Canada on November 27, 2013, on two counts of aggravated burglary and one count of felony domestic violence. A trial jury convicted him on one aggravated burglary count and the domestic violence count, and he was sentenced to an aggregate term of five years imprisonment. The appellate court affirmed the judgment. State v. Canada, 2015-Ohio-2167 (10^th Dist. Jun. 4, 2015)("Canada I"), appellate jurisdiction declined, 143 Ohio St. 3d 1467 (2015).

Canada filed an Application to Reopen his direct appeal under Ohio R. App. P. 26(B) which the court denied. State v. Canada, No. 14AP-523 (10^th Dist. Jan. 21, 2016)(unreported; copy at State Court Record, ECF No. 4-1, PageID 480, et seq.), appellate jurisdiction declined, 145 Ohio St. 3d 1425 (2016). On July 29, 2015, Canada filed a petition for post-conviction relief under Ohio Revised Code § 2953.21. The trial court denied the petition on the basis of Ohio's criminal res judicata doctrine, but the Court of Appeals reversed and remanded. State v. Canada, 2016-Ohio-5948 (10^th Dist. Sept. 22, 2016). On remand the trial court again dismissed the petition and Canada failed to perfect an appeal.

In the meantime, Canada filed a habeas petition raising ten grounds for relief in this Court. See Canada v. Warden, Case No. 2:16-cv-103. That petition was dismissed without prejudice because his state court petition for post-conviction relief was still pending, rendering his habeas claims unexhausted. Those proceedings are now concluded and Canada pleads the same ten grounds for relief here as in his previous petition as follows:

Ground One: Petitioner/Canada is entitled to Habeas Corpus relief on grounds that the state courts committed prejudicial err[or], in violation of the Confrontation Clause, Sixth Amendment, U.S. Constitution, by permitting the assistant prosecuting attorney, to use out-of-court, C.D. recordings, which also deprived Petitioner[] Canada of his right to a fair trial.

Ground Two: Appellant was substantially prejudiced against and denied his right to a fair trial in violation of his 6th and 14th Amendment Rights, on grounds that the Ohio courts state courts allowed inadmissible other bad acts into evidence that were not admissible under Evid. R. 403(A).

Ground Three: Petitioner's right to a fair trial under the United States [Constitution] was violated when the State engaged in prosecutorial misconduct when the prosecuting attorney denigrante [sic] defense counsel and made improper comments during closing arguments.

Ground Four: Petitioner was deprived of a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution, due to ineffective assistance of trial counsel by trial counsel's failure to object to prosecutorial misconduct during closing arguments.

Ground Five: Petitioner's constitutional right to a fair trial as guaranteed by the 6th and 14th Amendments to the United States Constitution was violated as a result of the trial court's ruling(s) based on cumulative erroneous evidentiary rulings and improper comments made by the prosecutor during closing arguments deprived Petitioner of a fair trial.

Ground Six: The state courts of Ohio committed constitutional error, to the prejudice of petition[er], in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution, as a result of the fact that Petitioner's conviction rests on insufficient evidence and is against the manifest weight of the evidence.

Ground Seven: Petitioner/Canada was deprived of his 6th and 14th Amendment right to effective assistance of counsel on direct appeal, and at trial, as a result of appellate counsel's failure to raise claims on appeal that: (A) trial counsel was "ineffective" by failing to "investigate" the case, prior to a proposed plea bargain offer, pertaining to the existance [sic] of certain 911 C.D. recording(s); and (B) due to the fact that counsel at trial was ineffective during the "plea proceedings," which caused Petitioner to reject the proposed plea offer, and causing Petitioner to suffer "actual prejudice," as a result of ineffective assistance of trial counsel that appellate counsel should have raised on direct appeal, and thus, violated Canada's 6th and 14th Amendment right to effective assistance of counsel on appeal and at trial.

Ground Eight: Appellate counsel on direct appeal was ineffective as a result of appellate counsel's failure to raise all of the similar claims: (1) defense counsel was ineffective for failing to object to the admissibility of the 911 C.D. recordings, on grounds that prosecutor withheld such evidence from being timely provided, and thus, violated the rule of discovery of evidence; (2) the prosecutor committed prosecutorial misconduct by not providing the evidence in a timely manner; (3) the trial judge committed a gross abuse of discretion by allowing the introduction of the C.D. recordings to be allowed into the record as evidence, when she was put on notice that defense counsel had just obtained the evidence on the day of trial; (4) Petitioner was deprived of his right to effective assistance of counsel arising out of prosecutorial misconduct, by not providing to the defense with the 911 C.D. tape recordings until the day of trial; and (5) Petitioner was denied his right to a fair trial, as well as to the right to effective assistance of counsel, resulting from the prosecution's failure to timely provide the actual C.D. recordings over the defense until the day of trial.

Ground Nine: Petitioner's Sixth and Fourteenth right to "effective" assistance of counsel at trial was violated, which deprived the Petitioner of his constitutional right to a fair trial, as a result of defense counsel's failure to independently subpoena any witnesses to come to court to testify; and for failing to "investigate" the case prior to the date of trial.

Ground Ten: Petitioner's 6th and 14th Amendment Right to the effective assistance of counsel was violated based on grounds that: (A) defense counsel failed to investigate the 911 C.D. recording(s) (prior to the day of trial) for purposes of properly "advising" Canada on accepting the prosecutor's plea deal, which was offered prior to the date of trial; and (B) Canada did not receive "effective" assistance of trial counsel during the "plea negotiations", as a result of the prosecutor's own purposeful delay in furnishing the 911 C.D. tape recordings until after the plea negotiations were offered, which violated Canada's right to the effective assistance of counsel during the plea process proceedings, which also prejudicially affected Canada's choice on going to trial.

(Petition, ECF No. 1.)

Analysis

Ground One: Confrontation Clause

In his First Ground for Relief, Canada claims his rights under the Confrontation Clause were violated when the trial court permitted the jury to hear recorded telephone calls made by Alicia and Anthony Jenkins on November 9, 2013. The content of those calls was recited by the Tenth District on direct appeal. Canada I, 2015-Ohio-2167 at ¶¶ 5-8. The court then decided the related assignment of error as follows:

A. First Assignment of Error

[*P24] In his first assignment of error, appellant contends the trial court erred in admitting statements made by Alicia and Anthony in the three recorded telephone calls made on November 9, 2013. Despite capiases issued against them, neither Alicia nor Anthony appeared at trial. Appellant argues admission of their out-of-court statements violated the Ohio Rules of Evidence as well as his right to confront the witnesses against him as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution.

[*P25] Prior to the commencement of testimony, defense counsel made an oral motion in limine asking the court to exclude the statements made in the recorded calls on grounds they were testimonial evidence which should be excluded from trial pursuant to his constitutional right to confront witnesses against him. The prosecutor urged admission of the statements under the excited utterance exception to the hearsay rule. After taking a short recess to listen to the calls, the trial court denied appellant's motion. Following presentation of its case, the prosecutor moved to admit State's exhibit No. 19, the CD containing all three calls. Defense counsel objected on grounds that admission of the statements violated Ohio evidentiary rules and state and federal constitutional provisions. The trial court overruled the objection and admitted the CD.

[Discussion of hearsay objection omitted.]

[*P45] Appellant next contends that admission of the statements violated his right to confront the witnesses against him as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution. We review the question of whether the trial court violated appellant's Confrontation Clause rights under a de novo standard. State v. Durdin, 10th Dist. No. 14AP-249, 2014-Ohio-5759, ¶ 15, citing State v. Rinehart, 4th Dist. No. 07CA2983, 2008-Ohio-5770, ¶ 20; McCl

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