Langford v. Warden, Ross Corr. Inst.

MARK LANGFORD, Petitioner,

v.WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.

CASE NO. 2:12-CV-0096

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

Dated: February 7, 2013

JUDGE GREGORY L. FROST

Magistrate Judge Kemp

REPORT AND RECOMMENDATION

Petitioner Mark Langford, a state prisoner, has filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. This case is before the Court on the petition, the Return of Writ (with exhibits), and petitioner's reply. For the following reasons, it will be recommended that petitioner be granted relief on his second ground and that a conditional writ of habeas corpus issue directing the State either to retry petitioner within 180 days or release him from custody.

I. PROCEDURAL HISTORY

The September, 2008 term of the Franklin County, Ohio grand jury returned a two-count indictment against petitioner, charging him with one count of aggravated murder with a firearms specification and one count of murder with a firearms specification. Both counts alleged that petitioner murdered one Marlon Jones on July 18, 1995. See Return of Writ, Exhibit One.

Petitioner filed a motion to dismiss based on pre-indictment delay, noting that hehad previously been indicted for the same crime on August 4, 1995, and that after that indictment was dismissed in November of the same year, more than thirteen years went by before the more recent indictment was filed. After that and several other pretrial motions were denied, petitioner went to trial before a jury and was found guilty of two counts of murder without specification. In an amended judgment entry filed on November 20, 2009, the trial judge sentenced petitioner to a prison term of fifteen years to life on count two. Return of Writ, Exhibit Ten.

Through counsel, petitioner timely appealed his conviction and sentence to the Tenth District Court of Appeals. He asserted five assignments of error, as follows:

FIRST ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT-APPELLANT'S MOTION TO DISMISS THE INDICTMENT DUE TO PRE-INDICTMENT DELAY IN VIOLATION OF DEFENDANT-APPELLANT'S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL GUARANTEED BY AMENDMENTS V, VI AND XIV OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.

SECOND ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY THAT A PERSON MUST ACT "WITH THE KIND OF CULPABILITY REQUIRED FOR THE COMMISSION OF AN OFFENSE" TO BE CONVICTED ON A COMPLICITY THEORY OF GUILT, THEREBY DEPRIVING DEFENDANT-APPELLANT OF HIS RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL AS GUARANTEED BY AMENDMENTS V AND XIV OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

THIRD ASSIGNMENT OF ERROR: THE TRIAL COURT

ERRED WHEN IT OVERRULED DEFENDANT-APPELLANT'S OBJECTIONS TO THE ADMISSION OF EVIDENCE RELATING TO DEFENDANT-APPELLANT'S AFFILIATION WITH A STREET GANG INVOLVED IN DRUG TRAFFICKING AND HIS INCARCERATION IN FEDERAL PRISON FOR OTHER CRIMES, IN VIOLATION OF DEFENDANT-APPELLANT'S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL GUARANTEED BY AMENDMENTS V AND XIV OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

FOURTH ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE DEFENDANT AS TO COUNTS ONE AND TWO OF THE INDICTMENT WHEN THEY ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF DEFENDANT-APPELLANT'S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL GUARANTEED BY AMENDMENTS V AND XIV OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

FIFTH ASSIGNMENT OF ERROR: THE TRIAL COURT ERRED WHEN IT CREDITED DEFENDANT-APPELLANT 123 DAYS OF CREDIT AGAINST HIS SENTENCE RATHER THAN THE 676 DAYS REQUESTED BY DEFENDANT-APPELLANT, IN VIOLATION OF HIS RIGHT TO EQUAL PROTECTION OF THE LAW UNDER THE CONSTITUTIONS OF THE UNITED STATES AND THE STATE OF OHIO.

Return of Writ, Exhibit Twelve. In an opinion filed on August 5, 2010, the state court of appeals overruled petitioner's first four assignments of error but vacated the sentence and remanded so that the trial court could award petitioner additional jail time credit. Return of Writ, Exhibit 14; State v. Langford., 2010 WL 3042185 (Franklin Co. App. August 5, 2010).

Petitioner, through counsel, appealed that decision to the Ohio Supreme Court. Inhis memorandum in support of jurisdiction, petitioner raised two issues, phrased as follows:

FIRST PROPOSITION OF LAW

A TRIAL COURT ERRS WHEN IT REFUSES TO DISMISS AN INDICTMENT ON GROUNDS OF PRE-INDICTMENT DELAY WHEN THERE HAS BEEN A DELAY OF OVER THIRTEEN YEARS BETWEEN DISMISSAL OF THE FIRST INDICTMENT AND FILING OF THE SECOND INDICTMENT. SAID ERROR DEPRIVES A DEFENDANT OF HIS RIGHTS TO DUE PROCESS OF LAW, A FAIR TRIAL, AND THE RIGHT TO COUNSEL UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTIONS TEN AND SIXTEEN OF THE OHIO CONSTITUTION.

SECOND PROPOSITION OF LAW

A TRIAL COURT ERRS WHEN IT FAILS TO INSTRUCT THE JURY THAT A COMPLICITOR MUST ACT WITH THE KIND OF CULPABILITY REQUIRED FOR THE COMMISSION OF AN OFFENSE TO CONVICT A DEFENDANT ON A THEORY OF COMPLICITY CONTRARY TO THE DUE PROCESS CLAUSE AND THE RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE OHIO CONSTITUTION.

The State of Ohio filed a cross-appeal on the issue of jail time credit. Return of Writ, Exhibits Fifteen through Eighteen. In an entry filed on January 19, 2011, the Ohio Supreme Court declined to accept the appeal and the cross-appeal. Return of Writ, Exhibit 20; State v. Langford, 127 Ohio St.3d 1503 (January 19, 2011).

During this same time period, petitioner, also through counsel, filed a motion to reopen his appeal, arguing that his appellate counsel was ineffective for failing to raise additional issues on appeal, including certain claimed errors in the jury instructions, a comment made by a witness about another murder, and the trial court's failure to suppress petitioner's statements to the police. In a decision dated January 27, 2011, the state court of appeals denied the application. Return of Writ, Exhibit 23. Petitioner also appealed that decision to the Ohio Supreme Court, but it again declined to accept the appeal. Return of Writ, Exhibit 27; State v. Langford, 128 Ohio St.3d 1502 (May 25, 2011).

On February 3, 2012, petitioner timely filed his petition for a writ of habeas corpus. He asserts five grounds for relief. The first four are identical to his first four assignments of error presented to the Tenth District Court of Appeals. The fifth raises the issues presented in his application for reopening his appeal. It is Respondent's position that claims three and four were procedurally defaulted because they were not raised before the Ohio Supreme Court, and that claims one, two and five are without merit.

II. THE FACTS

The basic facts of the case are recited in the state court of appeals decision. This Court is generally bound to accept those facts as true for purposes of this action. See 28 U.S.C. §2254(d)(1). Here is how the state court characterized the facts:

Marlon Jones was shot and killed on July 18, 1995. Mark Langford, under the alias James Allen, was indicted on August 4, 1995 and accused of aggravated murder as a result of the shooting. That original indictment was dismissed about three months later when a key witness, Nichole Smith, did not honorher subpoena and appear to testify at trial. Apparently unbeknownst to authorities, Langford was still a minor when the shooting occurred.

Columbus police detectives continued their investigation and interviewed Langford in September 1997 and June 1998. Finally, Langford was interviewed over ten years later while he was incarcerated on federal charges.

Police filed new charges against Langford with respect to the shooting of Marlon Jones in the Juvenile Division of the Franklin County Court of Common Pleas and the case was bound over to the General Division of the Franklin County Court of Common Pleas in October 2008. This led to a two count indictment charging Langford with aggravated murder, in violation of R.C. 2903.01, and murder, in violation of R.C. 2903.02. Each count carried a three-year firearm specification.

* * *

The testimony at trial indicated that Langford was shooting a handgun when Marlon Jones was killed. Nichole Smith testified that [three] men were shooting. One was shooting an assault rifle and two were shooting handguns. Nicole could not say which handgun Langford was shooting.

Federal prisoner Jason Arnold testified that Langford told him about the three men shooting at Marlon Jones and confessed to being one of the three. Langford claimed that he was shooting a .22 caliber handgun and not the .357 caliber handgun which fired the fatal shot.

State v. Langford., 2010 WL 3042185, *1, *4-5. Additional facts which relate to the specific claims asserted in the petition will be discussed in connection with those claims.

III. PROCEDURAL DEFAULT

In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the stateand federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. §2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims, then his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982)(per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). But if, because of a procedural default, the petitioner can no longer present his claims to the state courts, then he has also waived those claims for purposes of federal habeas corpus review, unless he can demonstrate both...