Wright v. Warden, Lebanon Corr. Inst.

ANTONIO WRIGHT, Petitioner,

v.WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.

Case No. 1:12-cv-121

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Dated: June 19, 2013

Dlott, J.

Wehrman, M.J.

REPORT AND

RECOMMENDATION

Petitioner, an inmate in state custody at the Lebanon Correctional Institution in Lebanon, Ohio, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the petition; respondent's return of writ with exhibits; petitioner's reply to the return of writ; and the transcript, which was filed by respondent on May 23, 2013 in accordance with an Order issued May 15, 2013, of the plea and sentencing hearings that were held in the state criminal matter. (Docs. 1, 5, 9, 12; see also Doc. 10).

I. PROCEDURAL HISTORY

State Trial Proceedings

On July 17, 2009, the Hamilton County, Ohio, grand jury returned a nine-count indictment against petitioner arising from a shooting incident on July 4, 2009 involving two victims, Jerome Burke and Melvin Dews, which resulted in the death of Burke. (See Doc. 5, Ex. 1). Specifically, the indictment charged petitioner with two counts of murder in violation of Ohio Rev. Code § 2903.02, with firearm specifications, stemming from conduct that resulted in the death of Burke (Counts 1-2); one count of attempted murder in violation of Ohio Rev. Code § 2923.02, with firearm specifications, based on the allegation that petitioner "purposely engaged in conduct which, if successful, would have constituted or resulted in the offense of MURDER" of Dews (Count 3); two counts of felonious assault in violation of Ohio Rev. Code § 2903.11(A),with firearm specifications, based on conduct against Burke (Counts 4-5); one count of felonious assault in violation of Ohio Rev. Code § 2903.11(A), with firearm specifications, based on conduct against Dews (Count 6); two counts of having weapons while under disability in violation of Ohio Rev. Code § 2923.13(A) (Counts 7-8); and one count of carrying concealed weapons in violation of Ohio Rev. Code § 2923.12(A)(2) (Count 9). (Id.).

On March 15, 2010, petitioner entered a guilty plea to a reduced charge in Count 1 of involuntary manslaughter in violation of Ohio Rev. Code § 2903.04(A) and the three-year firearm specification attached to that count, as well as to the felonious assault offense charged in Count 4. (See id., Ex. 4). It appears from the record that although Count 4 of the indictment charged petitioner with the felonious assault of Burke, the plea bargain included an agreement to amend that count to change the name of the victim to Dews. (See Doc. 12, Tr. 51). It also appears from the record that the plea bargain included an agreement between the parties that petitioner would receive a prison sentence of 18 years, "although there was a possibility that the investigating officer might request a possible reduction to a total of 15 years." (See Doc. 5, Ex. 10, p. 1; see also Doc. 12, Tr. 48-49). The remaining counts and specifications were dismissed by the State. (Doc. 5, Ex. 5; see also Doc. 12, Tr. 48).

After a sentencing hearing, the trial court issued a Judgment Entry on April 30, 2010, sentencing petitioner to an aggregate prison term of seventeen (17) years, which consisted of the following consecutive terms of imprisonment: nine (9) years for the involuntary manslaughter offense involving the victim Burke; three (3) years on the firearm specification attached to the involuntary manslaughter charge; and five (5) years for the felonious assault offense charged in Count 4 as amended to name Dews as the victim. (Doc. 5, Ex. 6; see also Doc. 12, Tr. 78).

State Appeal Proceedings

On June 9, 2010, petitioner filed a pro se notice of appeal and motion for leave to file adelayed appeal to the Ohio Court of Appeals, First Appellate District. (Doc. 5, Exs. 7-8). The Ohio Court of Appeals granted petitioner leave to appeal and appointed counsel to represent him on appeal. (Id., Ex. 9).

Petitioner's appointed counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), stating that she had "conscientiously examined the entire record for errors" in the case involving "a plea agreement and agreed sentence, and based upon R.C. Section 2953.08, [could] find no errors." (Id., Ex. 10). Counsel also stated that she had contacted petitioner to let him know that she was filing an Anders brief and enclosed letters from petitioner "outlining what errors he believed occurred." (Id.). In one of the attached letters dated July 24, 2010, petitioner stated:

I know that since I took a plea, most of my arguments would be waived, but I still feel that the issue of the imposition of consecutive sentences should have been objected to by my attorney at sentencing.

Therefore, I feel that this issue should be raised on my direct-appeal, seeing the jury is still out on how the Ohio Supreme Court will resolve the impact of Oreg[o]n v. Ice on Ohio'[s] imposition of consecutive sentencing.

(See id.). In a second letter dated August 4, 2010, petitioner further requested that the following issues be argued on appeal:

1. The consecutive sentence that was imposed on a[n] allied offense.

2. There was an error by my attorney so therefor[e] it is an ineffective counsel issue thereto.

3. I was charged with a[] Felonious Assault charge on a guy name[d] Melvin Dews which the guy was never harmed in any way so therefor[e] it can't be a Felonious Assault charge.

(See id.). Petitioner also contended in the second letter that "[t]here was no evidence at all" against him, and that he had entered the guilty plea "because I know the system do[es]n't care if I'm guilty or not, to them I'm guilty so I was not willing to risk my life like that when I was already in a lo[]sing position." (See id.).

On February 11, 2011, the Ohio Court of Appeals issued a Judgment Entry affirming the trial court's judgment. (Id., Ex. 12). The court reasoned in pertinent part:

As part of a plea agreement, defendant-appellant . . . pleaded guilty to one count of involuntary manslaughter under R.C. 2903.04(A) and one count of felonious assault under R.C. 2903.11(A)(1), with accompanying firearm specifications. Both counts involve different victims. As part of an agreed sentence, the trial court sentenced Wright to serve a total of 17 years' incarceration.

As provided in Anders v. California, Wright's appointed counsel has advised this court that, after a thorough review of the record, she can discern no arguable assignments of error to present on appeal. She has advised Wright of this determination, and Wright has set forth some possible errors in the proceedings below. Wright's counsel now asks this court to conduct an independent review of the record to determine whether the proceedings below were free from prejudicial error. She has also filed a motion to withdraw as Wright's counsel.

After reviewing the entire record, we are satisfied that Wright's counsel has provided her client with a diligent and thorough search of the record, and that she has correctly concluded that the proceedings below were free of prejudicial error. Therefore, we affirm the trial court's judgment and overrule counsel's motion to withdraw.

(Id.).

Petitioner pursued a timely pro se appeal to the Ohio Supreme Court from the appellate court's decision. (See id., Ex. 13). In his memorandum in support of jurisdiction, petitioner presented the following propositions of law:

1. Defendant-Appellant asserts that the imposition of consecutive sentences for involuntary manslaughter reduced charges of murder . . . and felonious assault . . . constitutes multiple punishment for but one offense. . . .

2. The trial Court erred when it imposed consecutive sentences in this case in violation of Mr. Wright's constitutional rights pursuant to the Sixth Amendment.

(Id., Ex. 14).

On May 25, 2011, the Ohio Supreme Court denied petitioner leave to appeal and summarily dismissed the appeal "as not involving any substantial constitutional question." (Id., Ex. 16).

Federal Habeas Corpus

Petitioner next commenced the instant habeas corpus action on February 10, 2012. (See Doc. 1, p. 13). In his petition, petitioner asserts three grounds for relief:

Ground One: Trial counsel was ineffective for failing to object to the imposition of consecutive sentences.

Ground Two: Trial court erred by imposing consecutive sentences for offenses that were allied.

Ground Three: Evidence was insufficient to support a conviction of felonious assault.

(Id., pp. 5, 7, 8).

In the return of writ filed in response to the petition, respondent contends in part that petitioner procedurally defaulted his claims in the state courts and, therefore, has waived each ground for relief. (Doc. 5, Brief, pp. 12-16). Petitioner has filed a "traverse" brief in reply to the return of writ, in which he disputes respondent's position. (See Doc. 9, pp. 2-3).

II. OPINION

A. Petitioner Has Waived The Claims Alleged In Grounds One And Three Of The Petition By Failing To Raise Them On Appeal To The Ohio Supreme Court

In Grounds One and Three of the petition, petitioner raises claims challenging the effectiveness of his trial counsel and the sufficiency of the evidence, which he asserted as issues to be considered on direct appeal in the letters attached to the Anders brief filed by his appellate counsel with the Ohio Court of Appeals. (See Doc. 1, pp. 5, 8; Doc. 5, Ex. 10). Respondent contends in the return of writ that petitioner has waived the two grounds for relief because he failed to assert them as propositions of law on further appeal to the Ohio Supreme Court. (Doc. 5, Brief, p. 12). Respondent's argument has merit.

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 state and federalcourts, a state defendant with federal constitutional claims must fairly present those claims to the state courts...