JAMES S. GWIN, District Judge.
Petitioner Ricci Lewis seeks habeas corpus relief under 28 U.S.C. § 2254 from his twentyyear sentence for aggravated burglary, felonious assault, and aggravated robbery with firearm specifications.
For the following reasons, the Court
On December 29, 2011, a Lake County, Ohio grand jury indicted Petitioner Lewis on two counts of aggravated burglary; three counts of aggravated robbery; one count of complicity to aggravated robbery; and one count of felonious assault.
On March 22, 2012, Lewis's trial attorney moved to withdraw as attorney of record based on attorney-client relationship breakdown.
On May 14, 2012, the first day of trial, Lewis made an oral request for a different appointed counsel.
The state trial court, however, granted Ohio's motion to voluntarily dismiss the complicity to aggravated robbery charge and the related firearm specification.
The jury found Petitioner Lewis guilty on all six remaining charges.
On May 24, 2012, the state trial court sentenced Petitioner Lewis to twenty years of incarceration.
The state trial court sentenced Lewis to six years for the aggravated burglary convictions and eight years for the aggravated robbery and felonious assault convictions.
On June 29, 2012, Petitioner Lewis appealed to the state appellate court.
On September 23, 2013, Lewis filed an application for reconsideration,
On November 17, 2014, Petitioner Lewis filed a notice of appeal in the Ohio Supreme Court.
On March 25, 2016, Petitioner filed his § 2254 habeas petition.
On September 21, 2017, Magistrate Judge Baughman, Jr. issued a Report and Recommendation.
The Federal Magistrates Act requires a district court to conduct a de novo review only of those portions of the Report and Recommendation to which the parties have properly objected.
A federal court may not reach the merits of claims that a state prisoner procedurally defaulted, unless the petitioner makes a showing of cause and prejudice or a finding of actual innocence.
The Sixth Circuit uses a three-step analysis to determine whether a claim is procedurally defaulted.
The Court may excuse a petitioner's procedural default if the petitioner shows "cause" for the procedural default and "actual prejudice" from the alleged error.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
AEDPA provides that federal courts cannot grant a habeas petition for any claim that the state court adjudicated on the merits unless the state court's decision:
Under the "contrary to" clause of § 2254(d)(1), "a federal court must find a violation of law `clearly established' by holdings of the Supreme Court, as opposed to its dicta, as of the time of the relevant state court decision."
Under § 2254(d)(2), a state court's determination of fact will be unreasonable only if it represents a "clear factual error."
There is no basis to grant relief on Petitioner's first ground.
In Petitioner's first ground, Lewis claims the state court violated a Sixth Amendment right to choose his own counsel. Petitioner argues that the state trial court violated his Sixth Amendment right to choose his own counsel when it did not permit his court-appointed counsel to withdraw.
First, the Court does not find that the state trial court made any unreasonable factual determinations when denying Petitioner's request to change his appointed counsel.
Rather, the state trial court reasonably found that counsel's deficiency was minimal and reasonably found that any representation deficiency had not prejudiced Petitioner. Petitioner could only point to his attorney's failure to note one fact in the police report.
The state trial court also reasonably found that any deficient performance resulting from a breakdown in communication between Petitioner and counsel was Petitioner's fault.
Second, the appellate state court did not unreasonably apply Supreme Court precedent by denying Petitioner's challenge to the trial court's denial of new appointed counsel. To support his claim, Petitioner Lewis identifies Supreme Court holdings from Powell v. Alabama, 287 U.S. 45 (1932), Yarborough v. Gentry, 540 U.S. 1 (2003), and Strickland v. Washington, 466 U.S. 668 (1984) in his objections.
These cases, however, do not support Petitioner's case.
In Powell, the Court found that a violation of defendants' Sixth Amendment right to counsel occurred when the state court appointed counsel on the first day of trial.
The Supreme Court held in Yarborough and Strickland that the Sixth Amendment only guarantees the attorney's reasonable competence.
The state appellate court's affirmance of the lower court's denial of counsel withdrawal reasonably reflects Yarborough's and Strickland's holdings.
Accordingly, the Court does not grant Petitioner relief based on his first ground.
Petitioner's second ground for relief also fails.
Petitioner claims that the state court denied him due process of law by amending the indictment without resubmission to a grand jury.
The Supreme Court has "uniformly" held that "the sufficiency of [a state court] indictment cannot be reviewed in habeas corpus proceedings."
For this reason, the Supreme Court precedent that Petitioner cites in his objections are inapplicable here. Those cases concerned federal indictments, rather than a state indictment like Lewis's indictment.
The Court does consider whether the state indictment gave sufficient notice of the offenses brought against Petitioner. An indictment provides sufficient notice under federal constitutional law if it "first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense."
The Court finds that the indictment enabled Petitioner to prepare a defense and protect himself against Double Jeopardy.
To the extent that Petitioner argues that the jury instructions violated the federal constitution, Petitioner must show that the "ailing instruction by itself so infected the entire trial that the resulting conviction violates due process."
Petitioner primarily relies on Ohio law to argue that the jury instructions concerning his indicted counts were incorrect.
The Court therefore does not grant Petitioner relief based on his second ground.
Petitioner's sixth ground for relief is procedurally defaulted. In his sixth ground for relief, Petitioner argues that his counsel failed to argue for a jury instruction that the jury must unanimously agree on a single theory of liability.
Under the first prong of the Maupin test for procedural default, Petitioner failed to raise this claim under the applicable Ohio time period. Under Ohio's "contemporaneous objection rule," an appellant who fails to object waives later review of an issue unless he shows plain error.
The second prong of the test is also satisfied. The Sixth Circuit has held that a state appellate court's plain error review is enforcement of a procedural default, not a waiver of the procedural rule.
The third prong of the Maupin test — adequate and independent state grounds — is also met. The Sixth Circuit has held that Ohio's contemporaneous objection rule is an adequate and independent state ground for purposes of procedural default.
Since the Petitioner's sixth ground for relief is procedurally defaulted, the Court rejects this claim unless Lewis succeeds in showing "cause" and "actual" prejudice.
The Court thus finds that Petitioner procedurally defaulted on his sixth ground for relief.
Even if Petitioner had not defaulted on his sixth ground, the Court denies this ground on the merits, as well as his third, fourth, and fifth grounds for relief. These grounds for relief concern the propriety of the state trial court's jury instructions.
In his objections, Petitioner mostly rehashes arguments from his reply to the Respondent's opposition.
Petitioner next argues that the Magistrate judge performed "no proper analysis of [Petitioner's] claims in the federal constitutional sense."
As the Magistrate Judge noted (and as explained before), a state court's interpretation of the proprietary of a jury instruction generally does not entitle a habeas claimant to relief.
For his third and fifth grounds, Petitioner cites no Supreme Court precedent in support.
For his fourth ground, Petitioner cites to Blakely v. Washington, 542 U.S. 296 (2004) to argue that the state trial court usurped the jury's fact-finding role when it instructed on the definition of "accomplice."
With respect to his sixth ground, Petitioner cites to Schad v. Arizona, 501 U.S. 624 (1991), Richardson v. United States, 526 U.S. 813 (1999), and McKoy v. North Carolina, 494 U.S. 433 (1990) to argue that the state trial court unconstitutionally failed to instruct the jury that it must unanimously agree whether he was an aider and abettor or a principal offender in the commissions of the underlying offenses.
However, these cases do not support Petitioner's arguments.
The Court does not grant relief based on the third, fourth, fifth, or sixth ground.
Petitioner's seventh, eighth, ninth, and tenth grounds for relief concern the state court's sentence. The Court agrees with the Magistrate Judge's denial of these grounds for relief.
To the extent that Petitioner challenges decisions on Ohio state law to obtain habeas relief, the Court cannot review these arguments.
For his seventh ground, Petitioner argues that the state court's imposition of a consecutive sentence violated Fiore v. White, 531 U.S. 225 (2001) and Harmelin v. Michigan, 501 U.S. 957 (1991).
With respect to his eighth and ninth grounds, Petitioner fails to cite any Supreme Court precedent to support his claims.
For his tenth ground, Petitioner argued in his response that he received unconstitutional multiple punishments in violation of Ohio v. Johnson, 467 U.S. 493 (1984), United States v. Dixon, 509 U.S. 688 (1993), and Blockburger v. United States, 284 U.S. 299 (1932).
Petitioner argues that the imposition of two separate sentences for the aggravated robbery convictions and aggravated burglary convictions was a Double Jeopardy violation under Dixon and Blockburger. Dixon and Blockburger prohibit multiple punishments for the same offense.
Based on an interpretation of Ohio law, the state appellate court found that aggravated robbery was a separate offense from aggravated burglary.
Johnson, moreover, is not as applicable to Petitioner's case. The Johnson case concerned the continued prosecution for greater offenses, where the defendant already pleaded guilty to lesser included offenses.
The Court does not grant relief based on the seventh, eighth, ninth, or tenth ground.
Lastly, in his eleventh ground for relief, Petitioner claims his counsel was ineffective because he failed to make certain trial objections.
Under Strickland, to make an ineffective assistance of counsel claim, a petitioner must demonstrate both that counsel's performance was deficient and that the deficient performance prejudiced the defense.
In his objections, Petitioner argues that the Magistrate Judge "did not analyze the constitutional claims presented by petitioner."
In his state appeal, Petitioner made no specific argument on either Strickland prong.
Petitioner next argues that the Magistrate Judge "failed to consider that there was an unreasonable determination of undisputed facts which resulted in multiple constitutional deprivations."
Accordingly, the Court does not grant relief on this eleventh ground.
For the reasons above, this Court
IT IS SO ORDERED
