Gaiter v. Bobby

RAY C. GAITER, Petitioner, v. DAVID BOBBY, Warden, Respondent.

CASE NO. 5:11-cv-02743

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

October 22, 2014

JUDGE BENITA Y. PEARSON

MAGISTRATE JUDGE KATHLEEN B. BURKE

REPORT & RECOMMENDATION

Petitioner Ray C. Gaiter ("Petitioner" or "Gaiter"), who is represented by counsel, filed this habeas corpus action pursuant to 28 U.S.C. § 2254 on December 19, 2011, asserting five grounds for relief which are set forth below in Section II.B.¹ Doc. 1. Respondent filed a Return of Writ (Doc. 7, Doc. 8, Doc. 9) and Gaiter filed his Traverse (Doc. 10).

Gaiter challenges the constitutionality of his conviction and sentence in State of Ohio v. Ray C. Gaiter, Case No. CR-2008-04-1271 (Summit County). Doc. 1. Gaiter was found guilty of possession of cocaine; tampering with evidence; failure to comply with order or signal of police officer; criminal gang activity; having weapons under disability; carrying concealed weapons; possession of marijuana, and speeding. Doc. 7-16. On April 27, 2009, Gaiter was sentenced to a total of 24 years incarceration. Doc. 7-17, Doc. 8-1, p. 2, ¶ 7.²

This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2.³ For the reasons set forth below, the undersigned concludes that Gaiter's grounds for relief are procedurally defaulted, without merit, and/or not cognizable on federal habeas review. Accordingly, Gaiter's Petition for writ of habeas corpus should be DENIED.

I. Factual Background

In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, the state court's factual findings are presumed correct. The petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Railey v. Webb, 540 F. 3d 393, 397 (6th Cir. 2008) cert. denied, 129 S. Ct. 2878 (2009). The Ohio Ninth District Court of Appeals summarized the facts underlying Gaiter's conviction as follows:⁴

{¶ 2} On April 16, 2008, Akron Police officers were working with the State Highway Patrol to conduct a gun violence sweep in targeted areas of Akron, Ohio. During this investigation, officers noticed a vehicle, which they later determined to be driven by Gaiter. Officers started to follow the vehicle, and upon observing a traffic violation, attempted to pull the vehicle over. Gaiter, however, attempted to elude the police. During the chase, he threw a baggie out of the driver's side window. Officers retrieved the item. After a foot chase, officers subdued Gaiter. The baggie contained over 175 grams of crack cocaine.

* * *

{¶ 5} On February 11, 2009, Gaiter was pulled over for speeding. When removed from the vehicle, officers found a partially smoked marijuana blunt and a loaded semi-automatic pistol.

Doc. 8-1, pp. 2, 3.

II. Procedural Background

A. State Conviction

1. Indictment⁵

On May 1, 2008, the Summit County Grand Jury indicted Gaiter on four counts: Count One - possession of cocaine in violation of Ohio Rev. Code § 2925.11(A)(C)(4), a felony in the first degree, with a major drug offender specification; Count Two - possession of marijuana in violation of Ohio Rev. Code § 2925.11(A)(C)(3), a minor misdemeanor; Count Three - tampering with evidence in violation of Ohio Rev. Code § 2921.12(A)(1), a felony in the third degree; and Count Four - failure to comply with order of signal of police officer in violation of Ohio Rev. Code § 2921.331(B), a felony of the third degree. Doc. 7-2.

On May 19, 2008, the Summit County Grand Jury issued a supplemental indictment charging Gaiter with Count Five - criminal gang activity in violation of Ohio Rev. Code § 2923.42(A), a felony in the second degree. Doc. 7-4. On November 7, 2008, the Summit County Grand Jury issued a second supplemental indictment charging Gaiter with Count Six - participating in a criminal gang in violation of Ohio Rev. Code § 2923.42(A), a felony in the second degree. Doc. 7-8.

On February 24, 2009, the Summit County Grand Jury indicted Gaiter on four additional counts - Count Seven - having weapons under a disability in violation of Ohio Rev. Code § 2923.13(A)(2)/(3), a felony in the third degree; Count Eight - carrying a concealed weapon in violation of Ohio Rev. Code § 2923.12(A)(2), a felony in the fourth degree; Count Nine - possession of marijuana in violation of Ohio Rev. Code § 2925.11(A)(C)(3), a minormisdemeanor; and Count Ten - speeding in violation of Ohio Rev. Code § 4511.21, a minor misdemeanor. Doc. 7-11.

On February 27, 2009, the Summit County Grand Jury issued a supplemental indictment charging Gaiter with Count Eleven - participating in a criminal gang in violation of Ohio Rev. Code § 2923.42(A), a felony in the second degree. Doc. 7-12.

2. Plea and pre-trial motions

Gaiter pled not guilty. Doc. 7-3; Doc. 7-5, Doc. 7-9, Doc. 7-13. He filed two motions to suppress and dismiss (Doc. 7-6, Doc. 7-14) which the trial court denied (Doc. 7-7, Doc. 7-15).

3. Trial and sentencing

Trial commenced on March 16, 2009.⁶ Doc. 7-16. Count Nine (possession of marijuana) and Count Ten (speeding) were tried to the court. Doc. 7-16, p. 2. The court returned a verdict of guilty as to Counts Nine and Ten. Doc. 7-16, p. 2. The remaining counts were tried to a jury.⁷ Doc. 7-16, pp. 1-2. On March 23, 2009, the jury returned their verdict finding Gaiter guilty of possession of cocaine;⁸ tampering with evidence; failure to comply with order or signal of police officer;⁹ criminal gang activity; having weapons under disability; and carryingconcealed weapons. Doc. 7-16, pp. 1-2. The trial court accepted the verdicts and found Gaiter to be a major drug offender. Doc. 7-16, p. 1.

On April 21, 2009, pursuant to its finding that Gaiter was a major drug offender, the trial court sentenced Gaiter to a mandatory 10 years for possession of cocaine; 2 years for tampering with evidence; 3 years for failure to comply with order or signal of police officer; a mandatory 6 years for criminal gang activity; 3 years for having weapons while under a disability; and 1 year for carrying concealed weapons.¹⁰ Doc. 7-17, pp. 1-2. The trial court ordered that all sentences were to run consecutively except for the one year term for carrying concealed weapons, which was to run concurrently. Doc. 7-17, p. 2. The total sentence was 24 years. Doc. 7-17, p. 2.

4. Direct appeal

On May 15, 2009, Gaiter, with counsel, appealed to the Ninth District Court of Appeals. Doc. 7-18. In his appeal, he raised the following assignments of error:

1. The trial court erred and abused its discretion in denying appellant's motion to sever two separate and unrelated incidents for trial.

2. Ohio's participating in criminal gang statute per R.C. 2923.42(A) is unconstitutional due to its vagueness and because its prohibitions are not clearly defined.

3. The appellant's constitutional right to due process and a fair trial was violated when the trial court overruled the appellant's objection to the following information being used and/or given to the jury during trial and at the close of the trial prior to deliberation: 1) certified copies of judgment entries which not only showed the appellant's convictions, but also reflected the multiple charges against the appellant which had been dismissed; 2) a non-evidentiary timeline, which included information regarding the appellant's previous prison term, created by law enforcement to be used in trial; and 3) references to the appellant's prior prison incarceration.

4. The trial court erred in denying the appellant's Crim. R. 29 motion for acquittal due to the insufficiency of evidence presented by the appellee during the trial regarding the charges in issue.

5. The trial court erred in sentencing the appellant to separate and consecutive time regarding the participating in a criminal gang and the other offenses which allegedly occurred on April 16, 2009,¹¹ because appellant's acts were not committed separately and nor did he have a separate animus for each alleged offense; wherefore, the sentencing for the participating in a criminal gang offense separately and consecutively constitutes a violation of the appellant's right to be free from double jeopardy which mandates that no person shall "for the same offence to be twice put in jeopardy of life or limb."

6. The trial court erred in improperly instructing the jury on the participating in a criminal gang.

Doc. 7-19. On December 28, 2009, Gaiter, pro se, filed a Motion for Leave to Supplement Appellant Assignment of Error Brief with the following additional assignments of error:

A.) Ineffectiveness of trial counsel at critical stages in preparation that fall below the legal standards;

B.) Confrontation violation's and affective cross examination of witness;

C.) Brady v. Maryland, Discovery violation's on state suppression of favorable evidence; Chain of custody breakage on evidence, and evident tampering of evidence;

D.) Structural error in the indictment and/or complaint;

E.) Unconstitutionality of penalties for crack cocaine and powder cocaine laws of Ohio and the federal question is preserved on review;

F.) Consecutive sentence's are contrary to law;

G.) Other constitutional questions of public interest involving state and federal laws being abridged.

Doc. 7-20. On December 31, 2009, the Ninth District Court of Appeals struck Gaiter's pro se filing from the appellate record.¹² Doc. 7-21. In striking Gaiter's motion for leave to supplement, the court stated, "While appellant has the right to appear pro se or to have counsel, he has no corresponding right to act as co-counsel on his own behalf." Doc. 7-21, p. 1. On December 30, 2009, the State filed its brief. Doc. 7-26. On May 19, 2010, the Ninth District Court of Appeals affirmed the judgment of the trial court. Doc. 8-1.

On July 6, 2010, Gaiter, with counsel, appealed to the Ohio Supreme Court. Doc. 8-2. In his Memorandum in Support of Jurisdiction, Gaiter raised the...