English v. Banks

RECO ENGLISH Petitioner,

v.ED BANKS, Warden, Noble Correctional Institution, Respondent.

Case No. 1:11-cv-675

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

July 30, 2012

District Judge S. Arthur Spiegel

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

Petitioner Reco English brought this habeas corpus action pro se pursuant to 28 U.S.C. § 2254 to obtain relief from his convictions in the Hamilton County Common Pleas Court on two counts of possession of cocaine with firearm specifications and two counts, subsequently merged, of possession of weapons under disability.

Procedural History

On November 9, 2001, the Hamilton County grand jury indicted English on two counts of trafficking in cocaine with firearms specifications, two counts of possession of cocaine with firearm specifications, and two counts of possessing weapons under disability. Trial was delayed for several years by English's absconding from bond. In 2008, however, the case was tried to a jury which convicted English on Count Three of possessing at least five but less than ten grams ofcrack cocaine, on Count Four of possessing at least twenty-five but less than one hundred grams of powder cocaine, on both firearm specifications, and on both counts of possessing weapons under disability. On September 5, 2008, he was sentenced to the aggregate eight (later reduced to seven) year term he is now serving. On direct appeal, the Hamilton County Court of Appeals affirmed the drug possession counts and the firearm specifications, but ordered the weapons under disability counts merged under Ohio Revised Code § 2941.25. English attempted a further appeal to the Ohio Supreme Court, which denied review.

English filed a petition for post-conviction relief under Ohio Revised Code § 2953.21 which was dismissed as untimely. That judgment was affirmed by the court of appeals and not appealed further. On July 21, 2010, English filed an application to reopen his direct appeal under Ohio R. App. P. 26(B) which the court of appeals denied; the Ohio Supreme Court denied further review.

Upon the original direct appeal decision remanding the case to the trial court for merger of the weapons under disability counts, the trial court obeyed the mandate, merged those two counts, and imposed one twelve-month prison term. His appointed counsel filed an Anders brief and the court of appeals declined to allow him to proceed pro se. The court of appeals then affirmed the judgment and the Ohio Supreme Court denied leave for a delayed appeal. On September 14, 2011, English filed in the trial court a motion entitled "Motion to Correct Illegal Sentence pursuant to R.C. Section 2929.19B)(2)(e)" which had not been ruled on as of the time the Return of Writ was filed. The Petition here was filed September 28, 2011.

Analysis

Petitioner pleads the following grounds for relief:

Ground One: Petitioner asserts that trial court impermissibly punished him for asserting his rights to a jury trial. Prejudice of Petitioner by imposing a sentence that is an abuse of discretion.

Ground Two: The Appellate Court erred to the prejudice of the Petitioner by finding him guilty of the possession of cocaine and having weapons under a disability, as those findings were not supported by sufficient evidence.

Ground Three: The trial court erred to the prejudice of the Petitioner by not granting Petitioner's motion to suppress the search of the residence.

Ground Four: The trial court erred to the prejudice of the Petitioner by finding the Petitioner guilty of possession of cocaine and having weapons under a disability, as those findings were contrary to law.

Ground Five: The Petitioner was denied the right to effective assistance of counsel and a fair trial under the Sixth and Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution.

Ground Six: The trial court erred by not disclosing the criminal informant. The Petitioner's rights were violated when the State used the confidential informant's statements to obtain a search warrant and then proceeded to violate the Petitioner's rights at trial by submitting the informant's statements.

Ground Seven: The trial court erred to the prejudice of the Petitioner by overruling his motion for acquittal under Ohio Criminal Procedure Rule 29.

Ground Eight: Petitioner's rights were prejudiced by the prosecutor. The state committed prosecutorial misconduct, the prosecutor's misrepresentation of material evidence.

Ground Nine: The Petitioner's trial counsel was unable to render adequate legal representation, through no fault of counsel, he was unable to prepare for trial due to the fact that the trial court refused to continue the trial to allow Petitioner's counsel to properly interviewwitnesses and complete discovery which deprived appellant his Sixth Amendment right to effective assistance of counsel, as well as his right to due process under the Fifth and Fourteenth Amendments of the United States Constitution.

Ground Ten: The appellate court erred by not adjudicating the pro-se brief that the appeal court granted be filed. The appeals court granted the Petitioner to file a supplemental brief but did not adjudicate the pro se brief.

Ground Eleven: Petitioner contends that Douglas Ventre's testimony should not have been admitted because his name was not disclosed by the prosecutor.

Ground Twelve: The cumulative effect of the errors committed during trial constituted prejudicial error thereby denying appellant his right to a fair trial.

(Petition, Doc. No. 1.)

Analysis

Ground One: Vindictive Sentencing

In his First Ground for Relief, English asserts the trial judge punished him by sentencing him more harshly for insisting on his right to trial by jury. Both parties agree that if this happened, it violated English's constitutional rights.

Respondent asserts this Court cannot reach the merits of this claim because it is procedurally defaulted in that it was not presented to the Ohio courts on direct appeal (Return of Writ, Doc. No. 9, PageID 59-61). Petitioner concedes that this is so, but argues his failure to present the claim on direct appeal is the result of the ineffective assistance of his appellate attorney. Attorney error serious enough to constitute ineffective assistance can be sufficient excusing cause for a procedural default. Murray v. Carrier, 477 U.S. 478 (1986). However, the claim of ineffective assistance of appellate counselmust itself first be presented to and exhausted in the state courts. Edwards v. Carpenter, 529 U.S. 446 (2000).

English did present his claim of ineffective assistance of appellate counsel to the First District Court of Appeals in his Application for Reopening under Ohio App. R. 26(B). The court of appeals rejected this claim, holding:

The proposed assignments of error would not have presented a reasonable probability of success had counsel advanced them on appeal. . . .

Nor does the record demonstrate that the trial court imposed an aggregate prison sentence greater than that offered and rejected during plea negotiations to retaliate against English for his rejection of the plea agreement and his insistence on a trial. English's sentences were not presumptively retaliatory, requiring the trial court to expressly disavow a retaliatory animus, because the record does not demonstrate that the trial court had participated in the failed plea negotiations [footnote omitted] or had made comments suggesting a retaliatory animus. [footnote omitted] And the record does not otherwise support English's claim that the court, contrary to R.C. 2929.11 and 2929.12, fashioned English's sentences upon consideration of his refusal to plead guilty and his assertion of his right to a trial [footnote omitted].

State v. English, No. C-080872 (Ohio App. 1st Dist. Nov. 18, 2010)(unreported, copy at Return of Writ, Doc. No. 9, Ex. 54, PageID 492-493.)

When a state court decides on the merits a federal constitutional claim later presented to a federal habeas court, the federal court must defer to the state court decision unless that decision is contrary to or an objectively unreasonable application of clearly established precedent of the United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. __, 131 S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Here the state appeals courtdecided the federal constitutional question of whether English received ineffective assistance of appellate counsel when his appellate counsel failed to raise this claim on direct appeal.

The governing standard for ineffective assistance of counsel is found in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687.

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly deferential. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at

...