Moore v. Warden, London Corr. Inst.

JOHNNY MOORE, Petitioner,

v.WARDEN, London Correctional Institution, Respondent.

Case No. 1:11-cv-155

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

March 8, 2012

District Judge William O. Bertelsman

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

Petitioner Johnny Moore brought this habeas corpus action pro se pursuant to 28 U.S.C. § 2254 to obtain relief from his conviction in the Hamilton County Common Pleas Court and consequent sentence. He pleads the following grounds for relief in the Petition:

Ground One: The trial court erred to Moore's prejudice by denying him the right to represent himself at trial.

Supporting Facts: When the trial court fails to rule upon a defendant's request to represent himself at trial, it violates his constitutional right to represent himself pro se.

Ground Two: Defendant-appellant was denied due process and prejudiced by the state's prosecutorial misconduct by continually asking leading questions during the direct examination of the state's witnesses.

Supporting Facts: When the prosecutor asks leading questions of his own witnesses it unfairly prejudices a Defendant's right to a fair trial.

Ground Three: Defendant-appellant was denied due process and was prejudiced by the state's misconduct in its opening statement aswell as referring to Moore's other bad acts.

Supporting Facts: When the prosecution makes improper [comments] in its opening statement, it prejudices defendant and is reversible error.

Ground Four: The trial court abused its discretion to Johnny Moore's prejudice by failing to have a per-[sic]sentence investigation report done by imposing an excessive sentence that is not support [sic] by the record.

Supporting Facts: When the trial court does not ask for a review or pre-sentence investigation report and imposes an unwarranted excessive consecutive sentence which is not supported by the record, it errs to a defendant-appellant's prejudice.

Ground Five: The evidence was insufficient as a matter of law and/or against the manifest weight of the evidence to sustain defendant-appellant's violation of protection/anti-stalking order and menacing by stalking conviction.

Supporting Facts: When a conviction for violation of protection/anti-stalking order and menacing by stalking is not supported by sufficient evidence and is against the manifest weight of the evidence, it constitutes reversible error.

(Petition, Doc. No. 12, PageID 68-74.)

On February 15, 2012, Magistrate Judge Litkovitz granted Petitioner's Motion to Amend to add the following grounds for relief which had already been responded to in the Return of Writ:

First Ground Raised: The court erred to the defendant['s] motion to withdraw counsel on the day of jury selection due to not having a constitutional right to a fair trial and representation by counsel.

Issue presented for review and argument: When counsel ask to withdraw for defendant; the court should not have prejudice the defendant by not granting the motion orally because the attorney never talked or came see the defendant at no time before the jury selection was made. The U.S. Constitution state's [sic] the right to a fair trial and representation.

Second Ground Raised: The court and the defendant's counsel erred when phone records was subpoena [sic] by prior attorney was never introduced has evidence on behalf of defendant.

Issue presented for review and argument: When prior attorney subpoena phone records, the courts and counsel should guarantee evidence that is useful for defendant's innocence be turned over from one attorney to another without prejudice, especially when the state uses and state's on record 40-50 times, the defendant called.

Third Ground Raised: The court erred when a motion to suppress was not ruled on and was ignored by the courts to render a ruling on said motion.

Issue presented for review and argument: When the court refuses to have a hearing on the motion to suppress, the courts must have a hearing to allow (or) not allowed hearsay (or) evidence, to be entered onto the record. When officer Dumont made a statement and a police report, stating that the defendant made a statement to only him on the phone [ ] the prosecutor's witnesses cannot testify on his behalf for not being able to hear any conversation with defendant (or) police officer. They cannot, the witnesses testify to the account or say that it was the defendant that was talking to the police officer. The officer Dumont filed the complaint himself against the defendant not the alleged victim. Deputy Dumont stated in court that he doesn't know if it was me or someone else. There was no signed or oral statement produce in court; just a statement from the deputy stating I'm Johnny Moore which cannot be used without evidence (or) oral statement, signed by defendant.

Fourth Ground Raised: The state over charged the defendant when their was [sic] no prior convictions or charges against him.

Issue presented for review and argument: The police report and affadvit [sic] and complaint from the charging officer, charged the defendant for harassment against Ms. Dorothy Pearson, which the grand jury didn't indict on and violation of protection order a felony 5 against Ms. Meyers, on May 4, 2008. Another day on April 25, 2008 their [sic] was a complaint for violation of protection order against the defendant. Only charging him with (1) count of violated protection order on that day only a felony 5[.] On April 26 or 28 of 2008 the defendant was back in front of Judge Davis to make sure that the P.S.I. and court clinic has seen me and interview me. At no time was my bond revoked or was their [sic] any allegation againstme in court, for April 25, 2008. Charge: on May 30th the grand jury indicted me for (1) count of violation protection order felony (5) (1) count of menacing by stalking order felony (4) (1) count of violation of protection order felony (3) for April 25, 2008 offense. On May 4, 2008 the same type of charges was filed again. The state charged me for felony's [sic] (4) menacing by stalking when the statue clearly states that I had to be charged or convicted of a past menacing by stalking to be elevated to a felony if not, it was a misdemeanor (1) for first offense. A menacing by stalking is a totally different protection order than a protection order under 3113.31 which was not for menacing or stalking orders. My protection order was D.V. order. 2 separate and different orders. The state over charged the defendant on (2) different days when the original charge was a felony (5) violated protection order.

Fifth Ground Raised: Ineffective counsel. The United States and Ohio Constitution guarantee's that the defendant be represented to the fullest of the law.

Issue presented for review and argument: The defendant's attorney never talked or came seen the defendant at no time to give any defense for the defendant, and give any account's [sic] to the defendant's claims. On the day of Jury Selections the attorney asked to be withdrawn from the defendant's case; the judge did ask the defendant why he wanted his attorney to withdraw from his case[.] The defendant stated on the record that he did not know who his attorney was standing next to him and that his attorney never came to see or talked to him. The attorney stated because of threats made by me and to the courts. The judge denied the motion because he said this case has been going on to long and the defendant having multiple attorney's on his case withdrawing because they could not represent the defendant cause of mental problems and denying court clinic and state hospital to evaluate the defendant. This reasoning by this judge and court clearly prejudicial to the defendant.

Sixth Ground Raised: When the state use's [sic] a invalid motion of nunc-pro-tunc to correct a sentence it is contrary to law and void.

Issue presented for review and argument: The state cannot use a nunc pro-tunc to change a person [sic] charge when the defendant was not in front of a judge and his attorney to hear that final phase in sentencing. The court's [sic] must bring back the defendant and re-sentence him under the new and final judgment. A nunc-pro-tunc can only be used to correct a clerical error (or) mistake in calculationnot to dismiss charges when the jury had a right to a lesser punishment or not to have me found guilty of all (6) felony's under a jury trial. The prosecutor's office stated I must be brought back for re-sentencing. The Ohio Public Defender's office said that motion for nunc-pro-tunc was invalid.

Seventh Ground Raised: When the state and defendant's counsel prejudice the defendant's right to a partial jury selection.

Issue presented for review and argument: When the state ask one of the jury members if she could sit on a jury trial and convict the defendant; she said no a couple of times and the state persue [sic] the jury member until she gave in. Another jury member said that he knew Ms. Meyers, but the state said in Cleves, Ohio, and he said no. The state and defendant's counsel never pursue any other means of how he knew the defendant [sic] victim but the jury member was a dentist and Ms. Meyers is a dental assistant which she has worked at numerous jobs and company's before. Ms. Meyers lived all around in different places during her career. And the state and defendant's counsel should have pursue where he knew Ms. Meyers.

Eighth Ground Raised: The state violated due process of defendant's rights to a fast and speedy trial.

Issue presented for review and argument: The defendant has a right for due process of the United State's constitution to a fast and speedy trial. And not be prejudice by the state for prosecutor misconduct repeatedly by the state's comments and evidence being denied.

(Doc. No. 18.)

In his Reply, Petitioner argues at several points that his conviction violates the Double Jeopardy Clause. He asserts that he raised this claim in his original Petition, but that the State did not...