Hendrix v. Warden, Leb. Corr. Insititution

1

D'JANGO HENDRIX, Petitioner, v. WARDEN, Lebanon Correctional Institution, Respondent.

No. 1:17-cv-623

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

July 7, 2023

Douglas R. Cole, District Judge

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE

This habeas corpus case, brought pro se by Petitioner D'Jango Hendrix under 28 U.S.C. § 2254, is before the Court on Petitioner's Objections (ECF No. 105) to the Magistrate Judge's Report and Recommendations which recommend dismissal of the Petition with prejudice (the “Report,” ECF No. 88). District Judge Cole has recommitted the case under Fed.R.Civ.P. 72(b) for further analysis in light of the Objections (Order, ECF No. 106).

Ground One: Improper Impeachment with Prior Convictions

In his First Ground for Relief, Hendrix asserts the trial judge improperly allowed him to be impeached with his prior felony convictions. The Report recommended dismissing this claim for failure to state a claim cognizable in habeas corpus, namely a violation of the United States Constitution (Report, ECF No. 88, PageID 2395). Alternatively, assuming Hendrix intended to assert admitting these convictions was a denial of due process, the Report recommended dismissal because no clearly established U.S Supreme Court precedent was unreasonably applied by the Ohio First District Court of Appeals in deciding this claim. Id. at PageID 2396. Hendrix objects (ECF No. 105 PageID 2515-21).

The litigation context of the trial judge's ruling is crucial. In 2014, a Hamilton County Grand Jury indicted Hendrix on four counts of attempted murder with firearm specifications, four counts of felonious assault, and two counts of having weapons while under a disability (Indictment, State Court Record, ECF No. 7, Ex. 1). The disqualifying disability pleaded as to Count Nine was prior conviction of “a felony offense of violence, to wit: burglary, in the Butler County, Ohio, Court of Common Pleas, Case No. CR2005030345, on January 23, 2006 and/or intimidation in the Butler County, Ohio, Court of Common Pleas, Case No. CR2005030435, on November l7, 2005.” Id. at PageID 48.

The disqualifying disability pleaded as to Count Ten was prior conviction of a “felony offense involving the illegal possession of, sale of, use of, administration of, distribution, or trafficking in any drug of abuse or has been adjudicated a delinquent child for the commission of an offense that if committed by an adult, would have been a felony offense involving the illegal possession of, use of, sale of administration of, distribution, or trafficking in a drug of abuse, to wit: trafficking in cocaine, in the Butler County, Ohio, Court Of Common Pleas, Case No.__ on May 25, 2001.” Id. at PageID 48-49.

These prior felony convictions - burglary, intimidation, and trafficking in cocaine -- are elements of the offenses of having a weapon under disability as charged in Counts Nine and Ten respectively and thus had to be proved by the State to the jury beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970). To avoid having persons associated with those prior cases come before the jury in this case and identify Hendrix as the person convicted in those prior cases, Hendrix himself moved to stipulate to those prior convictions (Motion to Stipulate, State Court Record, ECF No. 7, Ex. 3). Indeed he argued it would be an abuse of discretion for the trial judge to fail to accept that stipulation. Id. at PageID 56, citing State v. Creech, 150 Ohio St.3d 540 ¶ 29 (2016) and Old Chief v. United States, 519 U.S. 172 (1997)^[1].

Hendrix tried the case to a jury which found him guilty on all ten counts (Verdicts, State Court Record, ECF No. 7, Ex. 4). It is not uncommon for defendants to waive their jury trial right on weapons under disability charges and try those charge to the judge alone, in which case the jury would not have heard about the prior convictions at all. Hendrix did not take that approach, but tried the entire case to the jury.

Moreover, Hendrix took the stand to defend himself, to present his theory that he acted in self-defense. Under the Ohio Rules of Evidence, a criminal defendant's prior felony convictions are, in most instances, not admissible against him unless he becomes a witness^[2]. On the other hand, the prior felony convictions of any witness, whether or not a defendant, are admissible “for the purpose of attacking the credibility of [the] witness” at the discretion of the trial judge if they occurred within the last ten years. Ohio R. Evid. 609.

Hendrix complains that the prior convictions inquired into on cross-examination went far beyond the prior convictions which had been stipulated to.

The State went over three separate convictions for trafficking in cocaine, a burglary conviction, additional convictions for having weapons under disability, harassment by inmate convictions, illegal possession of a firearm in a liquor establishment, a conviction for intimidation, and finally, discharge of a firearm near a premises. (Doc. 7-4, Transcript, PageID 914-916). The real purpose behind the State's questioning could not be clearer: complete character assassination.

(Objections, ECF No. 105, PageID 2516). Because Hendrix had chosen to take the stand, the State was entitled to attack his character for truthfulness, as it could do with any witness, and the law regards prior felony convictions as relevant on that point. The State could not lawfully attack Hendrix's general character by showing, for example, marital infidelity or lack of church attendance, which are not relevant and could be highly prejudicial. But prior felony convictions are fair game on the issue of witness credibility.

At his or her discretion, a trial judge may exclude prior convictions if the danger of prejudice outweighs the probative value of the prior convictions. Hendrix claims the trial judge abused his discretion by not excluding prior convictions beyond those stipulated to on that basis. Id. at PageID 2517. However, abuse of discretion is not a denial of due process or any other federal constitutional guarantee. Sinistaj v. Burt, 66 F.3d 804 (6^th Cir. 1995). Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). Thus this Court cannot review an Ohio trial judge's exercise of discretion.

Hendrix also claims admission of these prior convictions denied him due process and a fair trial in violation of the Fourteenth Amendment, relying on Old Chief. Old Chief is not a constitutional decision, but rather an application of federal evidence law. The burden on a habeas petitioner seeking to overturn a state court merits decision on a federal constitutional claim is to show that decision is contrary to or an objectively unreasonable application of clearly established U.S. Supreme Court constitutional precedent. Hendrix has not done so. “There is no clearly established Supreme Court precedent which holds that a state violates due process by permitting propensity evidence in the form of other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6^th Cir. 2003), noting that the Supreme Court refused to reach the issue in Estelle v. McGuire. 502 U.S. 62 (1991).

Petitioner's Objections as to Ground One are without merit and should be overruled.

Ground Two: Challenge under Batson v. Kentucky, 476 U.S. 79 (1986).

In his Second Ground for Relief, Hendrix claims the trial court violated his constitutional rights under the Equal Protection Clause by seating a juror in violation of Batson v. Kentucky, 476 U.S. 79 (1986), by allowing a race-based peremptory challenge by the State. Hendrix had presented this claim on direct appeal and the First District rejected it, concluding that the trial judge's finding that the prosecutor's reasons for the challenge were not pretextual was not a clearly erroneous finding. The reason given was that the prospective juror's husband had been investigated for telephone harassment by the same police department which brought this case. Because the First District had decided this claim on the merits, Hendrix's burden under 28 U.S.C. § 2254(d)(2) was to show by clear and convincing evidence that that decision was in error, based on the facts on the record. The Report concluded Hendrix had not met that burden by merely labeling the prosecutor's reason “clearly pretextual.” (ECF No. 88, PageID 2400).

Hendrix objects. He does not claim the trial judge did not follow the analytical steps required by Batson. He admits that the demeanor of the prosecutor is important in assessing the prosecutor's credibility (Objections, ECF No. 105, PageID 2525-26, citing Wainwright v. Witt, 469 U.S. 412, 428 (1985). But only the trial judge observes that demeanor and Hendrix points to no peculiarity in the prosecutor's demeanor which could have led to doubting his credibility. He notes that failure to exclude prospective jurors of a different race from the challenged juror can support an inference of discrimination if they have the same characteristic on which the State claims to base its peremptory challenge, but he points to no such instance in this case.

Hendrix objects “there is no evidence that the trial court evaluated any of the State's proffered reasons for striking Prospective Juror Number 1. The court simply stated it found the reasons to be race neutral.” (Objections, ECF No. 105, PageID 2528). But none of the post-Batson jurisprudence requires a trial judge to explain on the record in the midst of trial why he or she is overruling an objection. Hendrix does not offer any...