Wright v. Sloan

KEVIN WRIGHT, Petitioner v. BRIGHAM SLOAN, Warden, Respondent.

Case No. 4:18CV2141

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

April 8, 2021

JUDGE PAMELA A. BARKER

MAGISTRATE JUDGE DAVID RUIZ

REPORT AND RECOMMENDATION

Kevin Wright ("Wright" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition is before the magistrate judge pursuant to Local Rule 72.2. At the time he filed his petition, the petitioner was in the custody of the Lake Erie Correctional Institution pursuant to a nineteen year sentence and journal entry of sentence dated May 29, 2015, in the case of State v. Wright, Case No. 13-CR-147. (R. 1, PageID #: 1; R. 8-1, RX 14.)

Wright filed the petition pro se, concerning his 2015 convictions for five counts of felonious assault, and other crimes, in the Mahoning County (Ohio) Court of Common Pleas. (R. 1.) The petitioner raises three grounds for relief:

1. The trial court erred when it failed to make a finding on petitioner's Batson challenge to the excusal of an African-American juror based on race in violation of petitioner's Fourteenth Amendment right to equal protection of the laws.

2. The trial court erred when it imposed consecutive sentences for improperly discharging a firearm into or at a habitation and felonious assault, allied offenses of similar import.

3. The trial court erred when it failed to rule on petitioner's motion to withdraw his speedy trial waiver and when it denied his motion to dismiss based on pre- indictment delay in violation of his Sixth Amendment and statutory rights to a speedy trial and his Fourteenth Amendment right to due process of law.

(R. 1-1, PageID #: 18, 21, 25.) Respondent has filed a Return of Writ (R. 8), and the petitioner filed a Traverse (R. 11). For the following reasons, the magistrate judge recommends that the petition be DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct. 28 U.S.C. § 2254(e)(1); Johnson v. Genovese, 924 F.3d 929, 938 (6th Cir. 2019); Thomas v. Stephenson, 898 F.3d 693, 696 (6th Cir. 2018). The same deference is applied to state-court factual findings made by a state appellate court based on the trial record. Johnson, 924 F.3d at 938; Carruthers v. Mays, 889 F.3d 273, 277 n.1 (6th Cir. 2018), cert. denied, 139 S. Ct. 1173 (2019). The petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. Tharpe v. Sellers, 138 S. Ct. 545, 546 (2018) (per curiam); Mitchell v. MacLaren, 933 F.3d 526, 531-532 (6th Cir. 2019) (citing Henley v. Bell, 487 F.3d 379, 384 (6th Cir. 2007)); Johnson, 924 F.3d at 938; Hendrix v. Palmer, 893 F.3d 906, 917 (6th Cir. 2018). Wright does not challenge the state court's recitation of the underlying facts.

The Ohio Court of Appeals provided the following factual and procedural background:

On February 7, 2013, Wright was indicted on five counts of felonious assault and attendant firearm specifications and two counts of improper discharge of a firearm at or into a habitation with the attendant firearm specifications; all seven primary offenses are second degree felonies. The charges stemmed from Wright firing an AK-47 at a vehicle with five passengers, an adult and four children. The children were unharmed, and the adult sustained three gunshot wounds but survived. Two adjacent residences sustained damage from the gunfire as well.

On May 7, 2013, Wright entered a plea of not guilty, was appointed counsel, and a trial date was set. Within the week that followed, counsel for Wright filed arequest for evidence, demand for discovery, a motion for bill of particulars and Wright executed a speedy trial waiver. As a result, the trial date was reset.

On September 18, 2013, Wright filed a pro se "motion to withdraw defendant's waiver of his right to a speedy trial." Within the motion he stated that he was never informed of his right to a speedy trial, and did not sign the waiver.

There were multiple continuances before August 1, 2014, when Wright filed a motion to dismiss due to pre-indictment delay in excess of one year, which the State opposed arguing a lack of actual prejudice. The trial court denied the motion.

After two plea hearings were set and continued, on December 1, 2014, Wright again filed a "revocation of speedy trial waiver" and requested new counsel. After being appointed, new counsel filed several motions to gather information about the case and requested a continuance to have time to prepare for trial.

Trial commenced on April 20, 2015 over two years after Wright was indicted. During voir dire Wright's counsel raised a Batson challenge.

The jury convicted Wright of all charges as indicted and a presentence investigation was ordered. The trial court sentenced Wright to eight years on one count of felonious assault, to be served consecutively to the remaining four counts for which the trial court imposed four-year sentences to be served concurrently to each other. The trial court also imposed a four-year sentence on both improper discharge counts, to be served concurrently to each other but consecutively to the other sentences imposed. Finally, while the trial court merged Wright's seven gun specifications for sentencing purposes and imposed a three-year term during the sentencing hearing, the sentencing entry omits this order; instead the trial court stated that Wright's total sentence was 19 years.

(R. 8-1, RX 18, PageID #: 183-184; State v. Wright, No. 15-MA-0092, 2017 WL 1193838, at *1 (Ohio Ct. App. March 29, 2017)).

Wright filed a timely direct appeal that raised three assignments of error:

1. The trial court erred when it failed to make a finding on Appellant's Batson challenge to the excusal of an African American juror based on race in violation of Appellant's Fourteenth Amendment right to equal protection of the law.

2. The trial court erred when it imposed consecutive sentences for improperly discharging a firearm into or at a habitation and felonious assault, allied offenses of similar import.

3. The trial court erred when it failed to rule on Appellant's motion to withdraw his speedy trial waiver and when it denied his motion to dismiss based on pre-indictment delay in violation of his Sixth Amendment and statutory rights to a speedy trial and his Fourteenth Amendment right to due process of law.

(R. 8-1, RX 16, PageID #: 129-130.) On March 29, 2017, the court of appeals affirmed the petitioner's convictions, but remanded the case for the trial court to issue a nunc pro tunc order specifying in the sentencing entry that Wright's sentence included three years on the firearm specification.¹ (R. 8-1, RX 18; Wright, , 2017 WL 1193838.)

Wright then filed an appeal to the Supreme Court of Ohio, setting forth the following three propositions of law:

1. The trial court erred when it failed to make a finding on Appellant's Batson challenge to the excusal of an African American juror based on race in violation of Appellant's Fourteenth Amendment right to equal protection of the law.

2. The trial court erred when it imposed consecutive sentences for improperly discharging a firearm into or at a habitation and felonious assault, allied offenses of similar import.

3. The trial court erred when it failed to rule on Appellant's motion to withdraw his speedy trial waiver and when it denied his motion to dismiss based on pre-indictment delay in violation of his Sixth Amendment and statutory rights to a speedy trial and his Fourteenth Amendment right to due process of law.

(R. 8-1, RX 20.) The Supreme Court of Ohio declined to accept jurisdiction of the appeal. (R. 8-1, RX 22; State v. Wright, 150 Ohio St.3d 1433, 81 N.E.3d 1272 (2017).) Wright then filed the petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. (R. 1.)

II. HABEAS CORPUS REVIEW

This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, which provides the standard of review that federal courts mustapply when considering applications for a writ of habeas corpus. Under the AEDPA, federal courts have limited power to issue a writ of habeas corpus with respect to any claim that was adjudicated on the merits by a state court. The Supreme Court, in Williams v. Taylor, provided the following guidance:

Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied -- the state-court adjudication resulted in a decision that (1) "was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

Williams v. Taylor, 529 U.S. 362, 412-413 (2002). See also Lorraine v. Coyle, 291 F.3d 416, 421-422 (6th Cir. 2002), cert. denied, 538 U.S. 947 (2003).

A state court decision is "contrary to" clearly established Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Williams, 529 U.S. at 405. See also Price v. Vincent, 538 U.S. 634, 640 (2003). A state court decision is not unreasonable simply because the federal court considers the state decision to be erroneous or incorrect. Rather, the federal court must...