Reid v. Warden, Corr. Reception Ctr.

TIMOTHY REID, Petitioner,

v.WARDEN, CORRECTIONAL RECEPTION CENTER, Respondent.

Case No. 3:12-cv-144

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

May 28, 2013

District Judge Walter H. Rice

Magistrate Judge Michael J. Newman

REPORT AND RECOMMENDATION¹

This case is now before the Court upon Petitioner Timothy Reid's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (doc. 1); Respondent's Return of Writ (doc. 7); and Petitioner's Traverse (doc. 10).

I. BACKGROUND

The Montgomery County Ohio Court of Appeals summarized the facts underlying Petitioner's conviction as follows:²

On April 10, 2008, Christopher Ousley was shot three times by two men outside Nathan's Superette carryout store on Delphis Avenue in Dayton. Reid and his cousin, Lonnie Scandrick, were subsequently arrested for the shooting. When interviewed by police[,] Reid admitted being present during the shooting, but claimed that the shots were fired by Scandrick and another man, Roderick Norvell.

State v. Reid, No. 23409, 2010 Ohio App. LEXIS 1415, at *1, 2010 WL 1511428, at *1 (Ohio Ct. App. Apr. 16, 2010) (brackets added) (doc. 7-10 at PageID 207-08).

A. Trial Court Proceedings

Defendant was indicted on one count of felony murder; two counts of felonious assault; and one count of having a weapon while under a disability, with a firearm specification attached to each charge. Doc. 7-1. Additionally, a repeat violent offender specification was attached to the murder and felonious assault charges. Id. Petitioner pled not guilty to the charges, and the case proceeded to trial. Docs. 7-2, 7-36, 7-37, 7-38.

In February 2009, Petitioner's case was tried to a jury in the Montgomery County, Ohio Court of Common Pleas, and the jury convicted Petitioner on all counts in the indictment.³ Doc. 7-5. The trial court separately found Petitioner guilty of the three repeat violent offender specifications. Doc. 7-38 at PageID 1066-68.

On April 6, 2009, Petitioner was sentenced to a total of 29 years to life imprisonment: 15 years to life for murder; 8 years for each felonious assault count, to be served concurrently to each other and concurrently to the previous prison term; 5 years for having a weapon while under a disability, to be served consecutively to the 15-year prison term; 3 years for each of the firearm specifications, to be served concurrently to each other and consecutively to the previous prison term; and 6 years for each of the repeat violent offender specifications, to be served concurrently to each other and consecutively to the previous prison term. Doc. 7-6.

B. Direct Appeal

Petitioner timely filed a pro se Notice of Appeal. Doc. 7-7. The Montgomery County, Ohio Court of Appeals appointed appellate counsel, who filed an appellate brief on Petitioner's behalf, asserting five assignments of error:

1. The trial court erred and abused its discretion, violated the rules of evidence, denying Appellant a fair trial and due process of law, on the charges against him, including murder and felonious assault, by allowing the State to introduce and argue his prior conviction in Arizona for murder in the first degree, irreparably and unfairly prejudicing the jury against him, and far outweighing any probative value. (Old Chief v United States (1997), 519 U.S. 172, applied);

2. The failure of trial counsel to offer to stipulate that Mr. Reid was a convicted felon for a crime of violence or to object to the introduction of the name and nature of the prior conviction for murder in the first degree, denied him his constitutional right under the Sixth Amendment to effective assistance of counsel;

3. The trial court erred and abused its discretion in convicting and sentencing [Defendant] for allied crimes of similar import that should have been merged;

4. The trial court erred in submitting to the jury and sentencing for specifications on Count 6, felony-murder, and the underlying counts, 7 and 8, felonious assault, and the HWWD, Count 9, as duplicitous; and

5. The trial court erred in allowing the offense of complicity to enter the trial and instructing the jury since the offense was not charged in the indictment.

Doc. 7-8 at PageID 91-92 (brackets added; capitalization altered). On April 16, 2010, the Ohio Court of Appeals overruled Petitioner's first, second, fourth and fifth assignments of error. Doc. 7-10. However, the Court of Appeals sustained in part and overruled in part his third assignment of error. Id. at PageID 214-21. The court remanded the case to the trial court to merge the two felonious assault offenses, and to further merge the felony murder offense with the surviving felonious assault offense, and then to re-sentence Petitioner accordingly. Id. at PageID 223-24.

With the assistance of counsel, Petitioner appealed to the Supreme Court of Ohio, setting forth two propositions of law:

1. It is an abuse of discretion for a trial court to allow the use and admission of evidence of the name and nature of a prior conviction of the defendant, for an identical or substantially similar crime, because the danger of unfairly prejudicing the jury against the defendant resulting in propensity reasoning and finding guilt based on the prior bad conduct, far outweighsits probative value. (Old Chief v. United States (1997), 519 U.S. 172, followed and approved); and

2. Where defense counsel does not object, propose a stipulation, or otherwise seek alternatives to avoid the highly prejudicial admission into evidence of the name and nature of a prior conviction for an identical or substantially similar offense, the defendant has been denied the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution.

Doc. 7-16 at PageID 248. The State filed a cross-appeal, setting forth one proposition of law: "Felonious assault and felony murder predicated upon felonious assault are not allied offenses of similar import." Doc. 7-18 at PageID 297.

On October 13, 2010, the Supreme Court of Ohio dismissed Petitioner's appeal and the State's cross-appeal as not involving any substantial constitutional question. Doc. 7-20. Petitioner unsuccessfully moved for reconsideration. Docs. 7-21, 7-23.

On March 1, 2011, Petitioner filed a petition for writ of certiorari in the United States Supreme Court. Doc. 7-24. On June 27, 2011, the Court denied the petition. Doc. 7-25.

C. Other State Court Proceedings

In April 2010, with the assistance of counsel, Petitioner filed three motions in the Montgomery County Court of Appeals: one motion for reconsideration (doc. 7-26); and two motions to certify its judgment as in conflict with the judgments of other Ohio Courts of Appeals (docs. 7-27, 7-28). On May 19, 2010, the Court of Appeals denied all three motions. Docs. 7-31, 7-32.

D. Re-sentencing

On November 1, 2010, Petitioner was brought before the trial court and re-sentenced in accordance with the Ohio Court of Appeals' decision. Doc. 7-12. The court merged the felonious assault counts together, merged the felonious assault count with the murder conviction, and merged the firearm specifications. Id. Petitioner ultimately received the same aggregatesentence of 29 years to life imprisonment: 15 years to life for felony murder; 5 years for having a weapon while under a disability; 3 years for the firearm specification; and 6 years for the repeat violent offender specification. Id.

E. Habeas Petition

Petitioner filed a petition for a writ of habeas corpus on May 18, 2012. Doc. 1. He pleads five grounds for relief:

GROUND ONE: Admission of the prior conviction was plain error;

Supporting Facts: The trial court erred and abused its discretion, violated the rules of evidence denying appellant a fair trial and due process of law on the charges against him, including murder and felonious assault, by allowing the State to introduce and argue his prior conviction in Arizona for murder in the 1st degree, irreparably and unfairly prejudicing the jury against him, and far outweighing any probative value this error of omission permeated the trial;

GROUND TWO: Ineffective assistance of counsel;

Supporting Facts: The failure of trial counsel to offer to stipulate that Mr. Reid was a convicted felon for the crime of violence or to object to the introduction of the name and nature of the prior conviction of 1st degree murder, denied him his constitutional right under the 6th amendment to effective assistance of counsel;

GROUND THREE: Sentenced for allied crimes;

Supporting Facts: The trial court erred and abused its discretion in convicting and sentencing for allied crimes of similar import that should have been merged;

GROUND FOUR: Sentenced as duplicitous counts;

Supporting Facts: The trial court erred in submitting to the jury and sentencing for specifications on Count 6, felony murder, and the underlying counts, 7 and 8, felonious assault, HWWD, Count 9, as duplicitous;

GROUND FIVE: The trial court erred in allowing the offense of complicity to enter the trial and instructing the jury since the offense was not charged in the indictment.

Id. at PageID 5-10 (capitalization altered).

II. ANALYSIS

A. AEDPA Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), when the state court decides a federal constitutional claim on the merits, the federal habeas court must defer to the state court decision unless: (1) the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d). A state court decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or "if the state court confronts a set of facts that are materially...