Wagner v. Warden, Southern Ohio Corr. Facility

SCOTT WAGNER, Petitioner,

v.WARDEN, SOUTHERN OHIO CORRECTIONAL FACILITY, Respondent.

CASE NO. 2:10-CV-446

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

May 22, 2012

Judge Marbley

Magistrate Judge King

ORDER and REPORT AND RECOMMENDATION

Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the Petition, Doc. No. 1, Respondent's Return of Writ, Doc. No. 7, Petitioner's Traverse, Doc. No. 19, Respondent's Supplement to Return of Writ, Doc. Nos. 22, 33, Petitioner's Supplemental Traverse, Doc. No. 32, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED. Petitioner's request for an evidentiary hearing is DENIED.

FACTS and PROCEDURAL HISTORY

The Ohio Fifth District Court of Appeals summarized the facts and procedural history of this case as follows:

On September 13, 2002, the Licking County Grand Jury indicted appellant on twenty-four counts of rape, twenty-seven counts of gross sexual imposition, one count of corruption of a minor and five counts of unlawful sexual conduct with a minor. On September 26, 2002, the grand jury indicted appellant on an additional six counts of rape, ten counts of gross sexual imposition and three counts of unlawful sexual conduct with a minor.

The state moved to consolidate the two cases for trial. The trial court granted the state's motion on October 23, 2002. Thereafter, on January 31, 2003, the grand jury indicted appellant on four counts ofillegal use of a minor in nudity-oriented material or performance and fourteen counts of pandering sexually oriented material involving a minor. The indictment was consolidated with the previous two indictments.

All three indictments were the result of sexual offenses appellant committed against eleven boys between June 1, 1996 and August 31, 2002. Prior to the commencement of trial on July 8, 2003, the state moved to dismiss three counts of rape and one count of illegal use of a minor in nudity-oriented material or performance. Following deliberations, the jury convicted appellant of eighty-nine counts.

On August 14, 2003, the trial court conducted a classification hearing and classified appellant as a sexual predator. On this same date, the trial court sentenced appellant to an eighty-nine year term of imprisonment.

Appellant timely filed a notice of appeal and sets forth the following assignments of error for our consideration:

"I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A CONTINUANCE BASED ON THE UNAVAILABILITY OF COUNSEL, THEREBY DEPRIVING APPELLANT OF HIS RIGHTS AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

"II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT'S REQUEST FOR STATE FUNDS TO HIRE A CHILD PSYCHOLOGIST, THEREBY DEPRIVING APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

"III. THE TRIAL COURT COMMITTED PLAIN ERROR IN CONSOLIDATING ALL OF APPELLANT'S SEPARATE COUNTS AND INDICTMENTS FOR TRIAL, THEREBY DEPRIVING HIM OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE

PROVISIONS OF THE OHIO CONSTITUTION.

"IV. THE TRIAL COURT ERRONEOUSLY ADMITTED EVIDENCE OF POST-TRAUMATIC STRESS DISORDER IN THE ABSENCE OF ANY EXPERT TESTIMONY IN VIOLATION OF THE RULES OF EVIDENCE AND THUS DEPRIVED APPELLANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

"V. THE TRIAL COURT COMMITTED PLAIN ERROR IN PERMITTING HEARSAY TESTIMONY OF INTERVIEWS CONDUCTED OF THE ALLEGED VICTIMS IN THIS CASE, THEREBY DEPRIVING APPELLANT OF HIS RIGHT OF CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

"VI. THE TRIAL COURT COMMITTED PLAIN ERROR IN ADMITTING IRRELEVANT AND INADMISSIBLE EVIDENCE ABOUT PORNOGRAPHY AND OTHER MATERIALS SEIZED FROM APPELLANT'S RESIDENCE, THEREBY DEPRIVING APPELLANT OF HIS RIGHT TO A FAIR TRIAL AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

"VII. THE PROSECUTING ATTORNEY'S REMARKS DURING CLOSING ARGUMENTS CONSTITUTED PROSECUTORIAL MISCONDUCT AND PLAIN ERROR WHICH DEPRIVED APPELLANT OF A FAIR TRIAL IN VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

"VIII. THE FAILURES OF APPELLANT'S TRIAL COUNSEL CONSTITUTED INEFFECTIVE ASSISTANCE, THEREBY DEPRIVING APPELLANT OF HIS RIGHTS AS GUARANTEED

BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

"IX. THE TRIAL COURT ERRED IN RELYING ON UNRELIABLE TESTIMONY IN CLASSIFYING APPELLANT AS A SEXUAL PREDATOR PURSUANT TO R.C. 2950.09, THEREBY DEPRIVING HIM OF HIS RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

"X. THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING CONSECUTIVE SENTENCES ON APPELLANT, AS SUCH SENTENCES ARE CONTRARY TO LAW AND ARE NOT SUPPORTED BY THE RECORD FROM THE SENTENCING HEARING. R.C. 2953.08."

State v. Wagner, 2004 WL 1672200, at *1-2 (Ohio App. 5th Dist. July 26, 2004). On July 26, 2004, the appellate court affirmed Petitioner's convictions, but sustained his tenth assignment of error and remanded the case to the trial court for re-sentencing. Id. On December 15, 2004, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. Exhibit 14 to Return of Writ.

On September 8, 2004, the trial court re-sentenced Petitioner to an aggregate term of eighty-nine years incarceration. Exhibit 15 to Return of Writ. Petitioner again filed a timely appeal, in which he asserted as follows:

THE TRIAL COURT ERRED IN IMPOSING NON-MINIMUM, CONSECUTIVE SENTENCES ON APPELLANT WHERE THE FACTS NECESSARY TO IMPOSE SUCH A SENTENCE HAD NEITHER BEEN PROVEN TO A JURY NOR ADMITTED BY APPELLANT, THEREBY DEPRIVING APPELLANT OF HIS RIGHT TO A JURY TRIAL AND DUE PROCESS OF LAW AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION

AND COMPARABLE PROVISIONS OF THE OHIO CONSTITUTION.

See State v. Wagner, 2005 WL 1785105, at *1 (Ohio App. 5th Dist. July 25, 2005). On July 25, 2005, the appellate court affirmed the trial court's judgment. Id. The Ohio Supreme Court, however, accepted Petitioner's subsequent appeal, and

remanded the case for resentencing pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856. See, In re Ohio Criminal Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109.

Upon remand, the trial court again sentenced appellant to eighty-nine years in prison. See, Judgment Entry filed June 29, 2006.

Following the granting of a motion for a delayed appeal, appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:

"THE COURT ERRED WHEN IT FAILED TO APPLY A PRESUMPTION IN FAVOR OF MINIMUM CONCURRENT SENTENCES, AND WHEN IT APPLIED CONSECUTIVE SENTENCES WITHOUT SUPPORTING FINDINGS FROM THE JURY. THESE ERRORS DEPRIVED THE DEFENDANT OF RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND SECTIONS 5 AND 16, ARTICLE I, OF THE OHIO CONSTITUTION."

State v. Wagner, 2008 WL 5257223, at *1 (Ohio App. 5th Dist. Dec. 16, 2008). On December 16, 2008, the appellate court affirmed the trial court's judgment. Id. On June 3, 2009, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. Exhibit 31 to Return of Writ.

On March 13, 2009, Petitioner filed an application to reopen his appeal pursuant to Ohio Appellate Rule 26(B). He asserted that he was denied the effective assistance of appellate counselbecause his attorney failed to raise on appeal the following claims:

1. The trial court erred by infringing upon the Appellant's right to obtain counsel of his own choosing when the trial court failed to timely return the Appellant's assets that were held in a receivership long after the need for the receivership had ended.

2. The trial court erred in denying Appellant's motion for a continuance based upon counsel's late appointment and limited opportunity to review case, thereby depriving Appellant of his rights as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and comparable provisions of the Ohio Constitution.

3. The failures of Appellant's trial counsel deprived him of his constitutional right to effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and comparable provisions of the Ohio Constitution.

Exhibit 32 to Return of Writ. On June 15, 2009, the appellate court denied Petitioner's Rule 26(B) application. Exhibit 34 to Return of Writ. The Ohio Supreme Court dismissed Petitioner's subsequent appeal. Exhibit 38 to Return of Writ.

On May 20, 2010, Petitioner filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.¹ He alleges that he is in the custody of Respondent in violation of the Constitution of the United States based on the following grounds:

1. A trial court errs in denying a proper motion for a continuance based on the unavailability of co-counsel due to illness.

2. A trial court abuses its discretion in denying a request for state funds to hire a child psychologist to assist in trial preparation.

3. A trial court commits error in consolidating all of Petitioner' separate counts and indictments for trial where join[d]er is improper, where severance is necessary to avoid prejudice, and where evidence from one indictment is not admissible in the trial of the others.

4. A trial court errs in admitting lay

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