SARA LIOI, District Judge.
On November 9, 2011, the above-captioned case was transferred to this district from the United States District Court for the Southern District of Ohio. (Doc. No. 25.)
Now before the Court is respondent's motion (Doc. No. 8) to dismiss the petition for writ of habeas corpus filed by Jose Rodriguez ("Rodriguez" or "petitioner") pursuant to 28 U.S.C. § 2254. (Doc. No. 2.) Also before the Court is petitioner's motion to stay. (Doc. No. 23.)
The June 2007 term of the Wood County grand jury indicted Rodriguez on one count of trafficking in marijuana with two forfeiture specifications. (Doc. No. 8, Ex. 1.)
(Ex. 20.) The forfeiture issues were not presented to the jury. The jury found Rodriguez guilty as charged in the indictment. (Ex. 13.) On January 31, 2008, the trial court sentenced Rodriguez to a mandatory term of eight years imprisonment. (Ex. 15.)
On February 29, 2008, represented by new counsel,
(Ex. 17.) On August 24, 2009, the state appellate court overruled Rodriguez's assignments of error and affirmed the judgment of the trial court. (Ex. 20.) On September 8, 2009, Rodriguez, acting pro se, moved for reconsideration pursuant to Ohio App. R. 26(A) (Ex. 21); the state appellate court denied this motion on September 29, 2009 (Ex. 22).
Still represented by his appellate counsel, Rodriguez filed a timely notice of appeal to the Ohio Supreme Court (Ex. 23), asserting a single proposition of law:
(Ex. 24.) On December 30, 2009, the Ohio Supreme Court denied leave to appeal. (Ex. 26.)
On March 1, 2010, now proceeding pro se, Rodriguez filed in the trial court a motion requesting resentencing to correct a void sentence, claiming that the trial court had failed to fully inform him of the potential consequence of violating post release control. (Ex. 27.) On the trial court entered an order denying this motion as meritless. (Ex. 28.)
On March 22, 2010, Rodriguez filed a timely pro se appeal (Ex. 29) from the trial court's denial of his motion to resentence, asserting a single assignment of error:
(Ex. 30.) On November 12, 2010, the state appellate court overruled Rodriguez's assignment of error and affirmed the trial court's judgment on sentencing. (Ex. 32.) Rodriguez did not appeal this decision to the Ohio Supreme Court.
On July 21, 2010, Rodriguez filed in the trial court a motion for public records pursuant to Ohio Rev. Code § 149.43(B)(8) (Ex. 33), and a motion for findings of fact and conclusion of law (Ex. 34). On August 30, 2010, the trial court denied the motions on the grounds that the court was not in possession of or responsible for the items requested, that the items were not public records within the meaning of § 149.43, and that the requested items would not provide the basis for a justiciable claim. (Ex. 35.) On September 9, 2010, Rodriguez moved the court to reconsider (Ex. 36); the court denied this motion on September 20, 2010 (Ex. 37).
On September 27, 2010, proceeding pro se, Rodriguez timely appealed the trial court's decision (Ex. 38), asserting a single assignment of error:
(Ex. 39.) On March 25, 2011, the state appellate court affirmed the judgment of the trial court. (Doc. No. 22, Ex. A.) Rodriguez moved for reconsideration (id., Ex. B), and the state appellate court denied his motion on April 27, 2011 (id., Ex. C). Rodriguez did not appeal this decision to the Ohio Supreme Court.
On September 21, 2010, Rodriguez moved in the state appellate court to file additional pages in his Ohio App. R. 26(B) motion to reopen his appeal. (Ex. 40.) On October 21, 2010, the state appellate court found that Rodriguez could not supplement a Rule 26(B) application because no such application was pending before the court and, if one were filed, it would be untimely. (Ex. 42.)
On December 3, 2010, Rodriguez filed in the Ohio Supreme Court a notice of appeal (Ex. 43) from the state appellate court's decision regarding his Rule 26(B) application. On March 2, 2011, the Ohio Supreme Court denied Rodriguez leave to appeal and dismissed his appeal as not involving any substantial constitutional question. (Ex. 45.)
On December 16, 2010, Rodriguez filed in the trial court a pro se petition for post-conviction relief pursuant to Ohio Rev. Code § 2953.21, asserting three grounds for relief:
(Ex. 46) (punctuation altered from the original). On January 10, 2011, the trial court dismissed Rodriguez's petition as untimely filed. (Ex. 47.)
On February 2, 2011, Rodriguez timely appealed the decision of the trial court to the state appellate court. (Ex. 48), asserting a single assignment of error:
(Doc. No. 22, Ex. G) (punctuation altered from the original). The state appellate court affirmed the judgment of the trial court. State v. Rodriguez, No. WD-11-011, 2011 WL 6930328 (Ohio Ct. App. Dec. 30, 2011).
On December 22, 2010, Rodriguez filed his pro se petition for a federal writ of habeas corpus, asserting three grounds for relief:
(Doc. No. 2) (some capitalization and punctuation altered from the original; supporting facts not quoted).
Respondent filed a motion to dismiss on March 21, 2011. (Doc. No. 8.) Rodriguez filed a response on June 15, 2011. (Doc. No. 16.) Thus, the motion to dismiss is ripe for decision.
"Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. [. . .] Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application." 28 U.S.C. § 2241(a) & (d). This Court has jurisdiction over Rodriguez's petition since Wood County is within this Court's geographic jurisdiction.
The habeas corpus statute authorizes an evidentiary hearing in limited circumstances when the factual basis of a claim has not been adequately developed in state court proceedings. 28 U.S.C. § 2254(e)(2). There is no need for an evidentiary hearing in the instant case. All of Rodriguez's claims involve legal issues that can be independently resolved without additional factual inquiry.
A state prisoner must exhaust all available state remedies or have no remaining state remedies available prior to seeking review of a conviction via federal habeas corpus. 28 U.S.C. § 2254(b) and (c); Castille v. Peoples, 489 U.S. 346, 349 (1989); Riggins v. McMackin, 935 F.2d 790, 793 (6th Cir. 1991). If any state procedures for relief remain available, the petitioner has not exhausted state remedies. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
A petitioner must fairly present any claims to the state courts in a federal constitutional context to exhaust state remedies properly; it is not sufficient that all the facts supporting his federal habeas petition may have been before the state courts. Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Shoultes v. Laidlaw, 886 F.2d 114, 117 (6th Cir. 1989). "[O]nce the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied." Picard, 404 U.S. at 275 (citations omitted); see also Harris v. Rees, 794 F.2d 1168, 1174 (6th Cir. 1986). "The exhaustion requirement is satisfied when the highest court in the state in which the petitioner was convicted has been given a full and fair opportunity to rule on the petitioner's claims." Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990).
The requirement that petitioners exhaust state remedies is a matter of comity between the federal government and the states:
Rose v. Lundy, 455 U.S. 509, 518 (1982) (quoting Darr v. Burford, 339 U.S. 200, 204 (1950)) (other citations omitted). Because exhaustion is a matter of comity, a petition containing unexhausted claims may be denied on the merits. 28 U.S.C. § 2254(b)(2).
Rodriguez has no state remedies available for his claims. Because no state remedies remain available to him, Rodriguez has exhausted state remedies.
Reasons of federalism and comity generally bar federal habeas corpus review of "contentions of federal law [. . .] not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure." Wainwright v. Sykes, 433 U.S. 72, 87 (1977). When a petitioner
Coleman v. Thompson, 501 U.S. 722, 750 (1991). Procedural default occurs when a petitioner fails to fairly present his claims to the highest state court in a federal constitutional context. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); Harless, 459 U.S. at 6-7. Moreover, a failure to present a claim to the highest court in the state deprives a federal court hearing a habeas petition of jurisdiction on that issue. See McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000).
If the state argues that a petitioner has procedurally defaulted his claims, the Court must conduct a four-step analysis to determine whether the petitioner has indeed defaulted and, if so, whether the procedural default may be excused:
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986) (citations omitted). A default also will be excused if petitioner demonstrates that not excusing the default "will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750 (internal quotation marks omitted) (citations omitted).
Respondent contends that Rodriguez has defaulted his second and third grounds for relief. Rodriguez raised his second and third grounds for relief, ineffective assistance of trial counsel and a due process violation resulting from prosecutorial "suppression" of evidence, in an application for post-conviction relief. The trial court dismissed his application as untimely. Rodriguez appealed the dismissal of his application as untimely to the state appellate court. At the time he filed the instant petition, that court had not yet ruled; however, on December 30, 2011, the court of appeals entered its judgment affirming the trial court. According to the website of the Clerk of the Supreme Court of Ohio, Rodriguez filed a notice of appeal on February 13, 2012.
The trial court and state appellate court both rejected Rodriguez's application for post-conviction relief as untimely. This Court has no reason to believe that the Ohio Supreme Court will accept the appeal. Ohio's limitations on the scope of postconviction relief are an adequate and independent state ground on which Ohio can rely to foreclose review of a federal constitutional claim. See, e.g., Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998) ("[A]ppellant never raised this specific issue on direct appeal to the Ohio Court of Appeals and the Ohio Supreme Court and is now barred from doing so because of procedural default.") (citation omitted). Thus, the state courts' rejection of Rodriguez's application for post-conviction relief as untimely is a ground that forecloses habeas review. Moreover, as Rodriguez has failed to timely present these claims to the highest court in the state, this Court is without jurisdiction to hear these issues under § 2254. Rodriguez's second and third grounds for relief have been procedurally defaulted.
Rodriguez also fails to demonstrate cause and prejudice for his default or demonstrate that enforcing the default would result in a manifest miscarriage of justice. Consequently, Rodriguez's second and third grounds for relief must be dismissed as procedurally defaulted.
The Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") altered the standard of review that a federal court must apply when deciding whether to grant a writ of habeas corpus. As amended, 28 U.S.C. § 2254(d) provides:
A writ of habeas corpus may issue only if the state court's decision is contrary to clearly established federal law or was based on an unreasonable determination of the facts in light of the evidence. Carey v. Musladin, 549 U.S. 70, 74 (2006); Williams v. Taylor, 529 U.S. 362, 379-90 (2000). Law is "clearly established" only by holdings of the Supreme Court, not its dicta, and the law must be clearly established at the time of the petitioner's conviction. Carey, 549 U.S. at 74.
Courts must give independent meaning to the phrases "contrary to" and "unreasonable application of" in § 2254(d)(1):
Williams, 529 U.S. at 404-05 (emphasis added by the quoting court). A decision is "contrary to" clearly established federal law if it reaches a conclusion opposite to that reached by Supreme Court holdings on a question of law or if it faces a set of facts materially indistinguishable from relevant Supreme Court precedent and still arrives at an opposite result. Id. at 405-06. A decision involves an "unreasonable application" of federal law only if the deciding court correctly identifies the legal principle at issue and unreasonably applies it to the facts of the case at hand. Id. at 413.
Federal habeas relief "does not lie for errors of state law," Lewis v. Jeffers, 497 U.S. 764, 780 (1990), and "federal courts must defer to a state court's interpretation of its own rules of evidence and procedure." Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1998) (quoting Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)). A federal habeas court does not function "as an additional state appellate court to review a state court's interpretation of its own law or procedure." Id. (quoting Oviendo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987)).
In his remaining ground for relief, Rodriguez contends that his Fourth Amendment rights were violated (1) when his car was stopped and searched by a police officer without sufficient knowledge to provide probable cause for the stop and search, and (2) when the trial court failed to suppress the fruits of this search. Respondent replies that this claim is not directly cognizable in habeas proceedings.
Habeas corpus is not generally available on the ground of a violation of rights protected by the Fourth Amendment if the petitioner has had an opportunity to present the Fourth Amendment claims in the state courts. The Supreme Court has held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976) (footnotes omitted).
The determination as to whether a petitioner has had "an opportunity for full and fair litigation of a Fourth Amendment claim" requires
Riley v. Gray, 674 F.2d 522, 526 (6th Cir. 1982) (citations omitted). The Sixth Circuit has determined:
Id. The Court must, therefore, make the second inquiry and determine whether presentation of the claim was in fact frustrated because of a failure of that mechanism.
The "fact-finding hearing" referenced by Riley is the sort contemplated by Townsend v. Sain, 372 U.S. 293 (1963), rev'd on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), which mandates factual determinations "fairly supported by the record" and a "factfinding procedure [. . .] adequate for reaching reasonably correct results." Id. at 316. In reviewing such an evidentiary hearing, absent "egregious error in the application of fourth amendment principles[,]" federal courts must presume "that state courts are as capable of deciding fourth amendment issues as federal courts." Riley, 674 F.2d at 526.
Under some circumstances, egregious error may be grounds for finding that a petitioner has been denied a full and fair hearing:
Riley, 674 F.2d at 526. In Gamble, the state courts failed to apply Brown v. Illinois, 422 U.S. 590 (1975), which held that merely giving a Miranda warning is insufficient to allow admission of evidence resulting from a Fourth Amendment violation and that specific factors should be considered in deciding whether improperly-obtained evidence should be admitted. The Court in Gamble noted that the state courts had mistakenly failed to cite Brown, failed to apply the Brown factors, and, contrary to Brown, found that a Miranda warning alone was sufficient to make improperly obtained evidence admissible. See Gamble, 583 F.2d at 1163.
In the present case, the suppression hearing included testimony by Agent Mark Apple ("Apple"), an investigator with the Bureau of Criminal Investigations of the Ohio Attorney General's Office, and Agent Michael Ackley ("Ackley"), a Wood County Deputy Sheriff assigned to the Drug Enforcement Administration in Toledo, Ohio. (Doc. No. 8, Ex. 41, Suppression Hearing Transcript, Aug. 14, 2007, ["Tr."] 4, 33.)
Apple testified that the drug buy involving Rodriguez had been assisted by a confidential source ("CS") who arranged a meeting with Luis Melendez. (Tr. 5, 9-10, 25.) On June 1, 2007, the CS, who was with Apple, received a phone call from Melendez advising that the drug sellers, in two cars, were getting off the Ohio Turnpike at Perrysburg, Ohio. (Tr. 25; Report ¶ 4; see also Tr. 46.) At Apple's direction, the CS told Melendez to meet them at the Meijer's Store on U.S. Rte. 20 in Rossford, Ohio. (Report, ¶ 4.) The CS was fitted with a "Beowulf recorder," which was turned on, and Apple was fitted with a "Falcon video and audio recorder," which was also activated. (Report, ¶ 5; Tr. 23.) The two went to the Meijer's Store followed by Agent Kip Lewton. (Report, ¶ 5.)
Apple and the CS met Melendez inside the Meijer's Store. There, in the presence of Rodriguez, they discussed with Melendez a price of $675 per pound for about 80 pounds of drugs in four bundles. (Tr. 5, 6-7, 17.)
Apple testified that he and the CS left the Meijer's Store in Apple's vehicle and Melendez left in a separate vehicle (a white F150 truck). Rodriguez was in a third vehicle (a Chevy S10 with Indiana registration). (Tr. 8, 31; Report, ¶ 6.) The CS and Melendez were talking on phones. Melendez advised the CS and Apple to wait for the third vehicle (Rodriquez's) to lead the way down I-75. (Tr. 28-29, 30-31; Report, ¶ 6.) They got on I-75 with Rodriguez in the lead,
Apple also testified that members of the Wood County Sheriff's Department and of the Bowling Green Police Department pulled the vehicles over for a pre-arranged stop.
Agent Ackley testified that he had been in constant communication with Apple and Agent Lewton on June 1, 2007. (Tr. 33-34, 45-46.) According to Ackley, Apple had described the vehicles that Melendez and Rodriguez were driving and described the conversations he had with Melendez and Rodriguez. (Tr. 34, 46.) Ackley made the decision to make the stop
Rodriguez, through his attorney, was given an opportunity to cross-examine the state's witnesses, and he did. He was also given an opportunity to call his own witnesses, but he declined to do so. (Tr. 48.) Later, the trial court determined that Ackley had probable cause for the stop of Rodriguez's vehicle. (Ex. 10.)
There are no grounds for arguing that Rodriguez was denied a full and fair hearing of his Fourth Amendment claims. He was represented by counsel, had the opportunity to cross-examine the witnesses against him, and had an opportunity to call witnesses on his behalf. Nor does Rodriguez argue "egregious error" of the sort found in Gamble.
Rodriguez contends that he was not permitted to testify on his own behalf. The transcript reflects that his attorney waived Rodriguez's right to call witnesses, including Rodriguez himself. (Tr. 47.) Thus, his assertion to the contrary notwithstanding, Rodriguez had an opportunity to testify and did not avail himself of that opportunity.
As the mechanism provided by Ohio for the resolution of Fourth Amendment claims is adequate and presentation of Rodriguez's Fourth Amendment claim was in no way frustrated by a failure of that mechanism, Rodriguez's Fourth Amendment claim is not cognizable before this Court. For these reasons, Rodriguez's first ground for relief is dismissed.
For the reasons given above, Rodriguez's second and third grounds for relief are dismissed as procedurally defaulted. Rodriguez's first ground for relief is dismissed as not being cognizable in habeas proceedings.
Thus, Rodriguez's entire petition is
