TIMOTHY S. BLACK, District Judge.
This case is before the Court pursuant to the Order of General Reference in the
As required by 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b), the Court has reviewed the comprehensive findings of the Magistrate Judge and considered de novo all of the filings in this matter. In this case, based upon the reasoning and citations of authority set forth in the Magistrate Judge's Report and Recommendations (Doc. 18), as well as upon a de novo review of this case, the Court adopts the aforesaid Report and Recommendations in its entirety and overrules Petitioner's Objections.
Accordingly, based on the foregoing, the Court: (1)
MICHAEL J. NEWMAN, United States Magistrate Judge.
Pursuant to 28 U.S.C. § 2254, Petitioner Carlos E. Bailum ("Bailum" or "Petitioner"), brings this petition for a writ of habeas corpus. In the Clark County Common Pleas Court, Bailum was convicted by jury verdict of gross sexual imposition, felonious sexual penetration, attempted rape, two counts of rape, and two counts of attempted unlawful sexual conduct with a minor. (Judgment Entry of Conviction, Doc. 11-1, PAGEID 80-82.) Bailum is now serving a sentence with a minimum of thirty-four years and four months and a maximum of sentence of fifty-two years and four months in Respondent's custody. (Id.) Proceeding pro se, Bailum pleads seven grounds for relief:
(Pet., Doc. 12.) (capitalization altered).
In March 2004, Bailum was indicted on
On September 17, 2004, Bailum timely appealed to the Ohio Court of Appeals (Notice of Appeal, Doc. 11-1, PAGEID 87), raising the following assignments of error in his brief:
(Appellant's Br., Doc. 11-1, PAGEID 95-113.) (capitalization altered). On October 28, 2005, the Court of Appeals overruled the assignments of error, affirming Bailum's conviction and sentence. State v. Bailum, No. 2004 CA 53, 2005 WL 2858110 (Ohio Ct.App.2d Dist. Oct. 28, 2005). (Doc. 11-1, PAGEID 128-35.)
With the assistance of counsel, Bailum timely appealed to the Ohio Supreme Court, asserting two propositions of law:
(Appellant's Br., Doc. 11-1, PAGEID 138-61.) On May 3, 2006, the Ohio Supreme Court accepted Bailum's appeal as to the first proposition of law, reversed the judgment of the Court of Appeals, and remanded the case to the trial court for resentencing consistent with State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470 (2006). State v. Bailum, No. 05-2313 (Ohio May 3, 2006). (Doc. 11-1, PAGEID163.)
While his direct appeal was pending, Bailum filed an untimely pro se petition for post-conviction relief, asserting the following claims: (1) "Trial counsel failed to obtain medical reports of alleged rape victim";
Shortly after the trial court's decision, Bailum filed a "Motion to Dismiss Enhancement of Sentence Based Upon Plea of Former Acquittal Pursuant to Ohio Criminal Rule 12(C) & 32(A)(1)." (Doc. 11-1, PAGEID 178-90.) Finding that Bailum's claims were barred by res judicata and, alternatively, that Foster did not apply to his case, the trial court denied Bailum's motion. State v. Bailum, No. 04-CR-0212 (Clark Cnty. Ct. Com. Pl. Sept. 29, 2006). (Doc. 11-1, PAGEID 191-92.) Bailum did not appeal the denial of his motion.
Further, on January 19, 2006, Bailum filed a timely pro se application to re-open his appeal pursuant to Ohio App. R.P. 26(B), asserting an ineffective assistance of appellate counsel claim based on his counsel's failure to challenge his consecutive terms of imprisonment. (Appl., Doc. 11-1, PAGEID 193-98.) On March 24, 2006, the Court of Appeals denied Bailum's 26(B) Motion, State v. Bailum, No. 2004 CA 53 (Ohio Ct.App.2d Dist. Mar. 24, 2006) (Doc. 11-1, PAGEID 199-202), and Bailum did not appeal to the Ohio Supreme Court.
Upon appearing before the trial court for re-sentencing in accordance with Foster, Bailum received the same sentence that was originally imposed. (Judgment Entry, Doc. 11-1, PAGEID 203-04.) With the assistance of counsel, Bailum timely appealed the terms of his re-sentencing to the Court of Appeals, (Notice of Appeal, Doc. 11-1, PAGEID 205), raising one assignment of error: "The trial court committed prejudicial error in sentencing Mr. Bailum to more than the minimum and running multiple sentences consecutively." (Appellant's Br., Doc. 11-1, PAGEID 208-18.) (capitalization altered). On June 20, 2008, the Court of Appeals affirmed the trial court's re-sentencing. State v. Bailum, No. 2007-CA-55, 2008 WL 2469201 (Ohio Ct.App.2d Dist. June 20, 2008). (Doc. 11-1, PAGEID 227-33.)
Proceeding pro se, Bailum timely appealed his re-sentencing to the Ohio Supreme Court, (Notice of Appeal, Doc. 11-1, PAGEID 234-35), asserting one proposition of law: "The trial [court] committed prejudicial error in sentencing Mr. Bailum to more than the minimum and running multiple sentences consecutively." (Appellant's Br., Doc. 11-1, PAGEID 236-48.) (capitalization altered). However, the Ohio Supreme Court declined to hear Bailum's appeal. State v. Bailum, No. 2008-1510, 120 Ohio St.3d 1418, 897 N.E.2d 653 (Ohio Dec. 3, 2008). (Doc. 11-1, PAGEID 264.)
Further, on August 29, 2008, Bailum filed a second pro se application to re-open the direct appeal of his re-sentencing under Ohio App. R.P. 26(B), claiming ineffective assistance of appeal counsel. (Appl., Doc. 11-1, PAGEID 267-76.) Specifically, Bailum contended:
(Id.) (capitalization altered). On September 25, 2008, the Court of Appeals denied his 26(B) Motion. State v. Bailum, No. 2007-CA-55 (Ohio Ct.App.2d Dist. Sept. 25, 2008). (Doc. 11-1, PAGEID 281-83.)
Bailum timely appealed the Court of Appeals' decision to the Ohio Supreme Court, (Notice of Appeal, Doc. 11-1, PAGEID 284), raising two propositions of law:
(Appellant's Br., Doc. 11-1, PAGEID 286-96) (capitalization altered), but the Ohio Supreme Court declined to hear his case. State v. Bailum, No. 2008-2035, 120 Ohio St.3d 1458, 898 N.E.2d 971 (Ohio Dec. 31, 2008). (Doc. 11-1, PAGEID 301.)
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), when a 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"; 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 considered "contrary to ... clearly established Federal law," when it is "diametrically different, opposite in character or nature, or mutually opposed." Nields v. Bradshaw, 482 F.3d 442, 449 (6th Cir.2007) (citation omitted). To be deemed "an unreasonable application of ... clearly established Federal law," a state court's decision must be "`objectively unreasonable,' not simply erroneous or incorrect." Cornwell v. Bradshaw, 559 F.3d 398, 405 (6th Cir.2009) (citation omitted). Further, under 28 U.S.C. § 2254(e)(1), a state court's factual findings are presumed correct unless the petitioner rebuts them by clear and convincing evidence. Id. This statutory presumption of correctness also extends to factual findings made by state appellate courts' review
In Ground One, Bailum asserts that his trial counsel's failure to call an expert witness constituted ineffective assistance of counsel. (Petitioner, Doc. 12, PAGEID 314.) The State contends that Ground One is procedurally defaulted because Bailum failed to timely exhaust his state remedies through appeal.
Because Bailum does not specify which experts his counsel failed to use, it is not clear whether the evidence supporting this claim was based in the trial court record and should have been raised on direct appeal, or whether this claim is premised on facts outside the record and was a proper post-conviction relief claim. Regardless though, Ground One is procedurally defaulted because Bailum failed to exhaust his state remedies in both procedural avenues. First, although Bailum raised the claim on direct appeal to the Court of Appeals, (see Appellant's Br., Doc. 11-1, PAGEID 95-113), he abandoned it on discretionary appeal to the Ohio Supreme Court. (See Appellant's Br., Doc. 11-1, PAGEID 139-61.) Failure to present an issue to the state supreme court on discretionary review constitutes procedural default. O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).
Second, Ground One is barred because Bailum filed his petition for post-conviction relief, also raising a claim that his counsel was ineffective for failing to use expert witnesses, five months after the expiration of the limitations period under Ohio Revised Code § 2953.21, and the Court of Appeals denied his petition on that basis. State v. Bailum, No. 04-CR-0212 (Clark Cnty. Ct. Com. Pl. Aug. 15, 2006). (Doc. 11-1, PAGE ID 177). The 180-day limitations period in Ohio Revised Code § 2953.21 is an adequate and independent state ground to bar a federal habeas claim. Bird v. Hurst, 110 Fed.Appx. 474, 478-79 (6th Cir.2004). Thus, Bailum's claim is procedurally defaulted for failing to timely file his post-conviction petition. Moreover, Bailum failed to appeal the denial of his post-conviction petition to the Ohio Supreme Court.
Therefore, as Bailum has not suggested any reason to excuse his procedural default, Ground One should be dismissed.
In Ground Two, Bailum contends that his trial counsel was ineffective for failing to renew his objections to the prosecutor's improper remarks. As the State argues, Ground Two is procedurally defaulted because Bailum did not raise this issue on direct appeal to the Ohio Supreme Court. (See Appellant's Br., Doc. 11-1, PAGEID 139-61.) O'Sullivan, 526 U.S. at 845, 119 S.Ct. 1728. Therefore, Ground Two should be dismissed as procedurally defaulted.
In Grounds Three, Four and Five, Bailum challenges his sentence. Specifically, he contends that the trial court erred in imposing a term greater than the statutory minimum and imposing consecutive sentences. The State's argument-that he did not raise the issue on appeal-is without merit. On direct appeal to both the Court of Appeals and the Ohio Supreme Court, Bailum claimed "the trial committed prejudicial error in sentencing Mr. Bailum to more than the minimum and running multiple sentences consecutively." (Appellant's Br., Doc. 11-1, PAGEID 208-18); (Appellant's Br., Doc. 11-1, PAGEID 236-48.) (capitalization altered). Further, in those appeals, Bailum raised constitutional issues by arguing that his sentence violated
In denying Bailum's assignment of error, the Ohio Court of Appeals did not address his constitutional arguments. See State v. Bailum, No. 2007-CA-55 (Ohio Ct. App. 2d Dist. June 20, 2008). (Doc. 11-1, PAGEID 227-31.) Instead, it only evaluated whether the trial court abused its discretion. (See id.) Where the state court does not adjudicate a habeas claim on the merits, the habeas court conducts an independent review of the petitioner's claim. Williams v. Anderson, 460 F.3d 789, 796 (6th Cir.2006).
Under the Sixth Amendment, any fact, other than a prior conviction, that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Blakely v. Washington, the Supreme Court explained that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
Following Blakely, the Ohio Supreme Court held that the parts of the Ohio sentencing scheme-that required judicial fact-finding before imposing consecutive sentences or sentences beyond the statutory minimum-were unconstitutional. State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 494-98 (2006). Thus, the court severed those portions of the statute. Id. at 496-98. As a result of the severance, "[t]rial courts have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than minimum sentences." Id. at 498.
In this case, the trial judge resentenced Bailum to the same terms of his original sentence without the fact finding previously required by Ohio Revised Code § 2929.14, which was proper under Foster. (Judgment Entry, Doc. 11-1, PAGEID 203-04.) While Bailum's sentence was more than the minimum, it was within the statutory guidelines and is therefore constitutional.
In Grounds Six and Seven, Bailum asserts that his appellate counsel was ineffective for failing to argue that: (1) his resentencing violated the Due Process Clause and the Ex Posto Facto Clause; and (2) the Foster severance remedy violates the separation of powers doctrine. The State concedes that these claims are not procedurally defaulted.
In considering Bailum's 26(B) Motion, the Court of Appeals denied his ineffective assistance of counsel claims on the ground that it did not have the authority to declare a Ohio Supreme Court's holding unconstitutional. See State v. Bailum, No. 2007-CA-55 (Ohio Ct.App.2d Dist. Sept. 25, 2008). (Doc. 11-1, PAGEID 281-83.) Thus, because the state court did not adjudicate Bailum's constitutional claim on the merits, the Court should conduct an independent review of his claim. See Williams, 460 F.3d at 796.
To prevail on his ineffective assistance of counsel claim, Snyder must meet the twopart Strickland v. Washington test by demonstrating that his counsel's performance was deficient and that he was prejudiced as a result. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because there is "a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance," to meet the "deficiency" prong, the defendant must demonstrate that counsel's performance "fell below an objective standard of reasonableness." Id. at 688-90, 104 S.Ct. 2052. To satisfy the "prejudice" prong, "[t]he defendant must show that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. Accordingly, "counsel's failure to raise an issue on appeal could only be ineffective assistance if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal." McFarland v. Yukins, 356 F.3d 688, 699 (6th Cir.2004).
Here, regardless of whether his counsel should have raised the claims on appeal, Bailum's ineffective assistance of counsel claims fail because there is no reasonable probability that he would have prevailed had they been raised. At the time that Bailum's counsel filed the appellate brief on December 14, 2007, many Ohio Courts of Appeals, including the Second District Court of Appeals, had held that Foster did not violate the Ex Post Facto Clause. See State v. Davis, No 2006 CA 69, 2007 WL 706802, at *6-7 (Ohio Ct.App.2d Dist. Mar. 9, 2007); State v. Smith, No. 21004, 2006 WL 2459101, at *4-5 (Ohio Ct.App.2d Dist. Aug. 25, 2006).
Similarly, when Bailum's counsel appealed his re-sentencing, many Ohio
Therefore, Bailum cannot demonstrate, as required under Strickland, that his appellate counsel's failure to argue that his re-sentencing violates the Due Process Clause and Ex Post Facto Clauses and that the Foster severance remedy violated the separation of powers doctrine prejudicially affected the outcome of his appeal. According, Grounds Six and Seven should be dismissed.
It is therefore
September 28, 2011
