JAMES S. GWIN, District Judge.
On September 2, 2014, Petitioner George T. Greer sought habeas relief under 28 U.S.C. § 2254. On November 25, 2014, Respondent Maggie Bradshaw filed a return of writ.
Magistrate Judge Limbert issued his Report and Recommendation, recommending that this court deny Greer's petition in its entirety.
For the following reasons, this Court
Petitioner seeks relief from his Ohio criminal convictions arising from an episode of drunk driving. As set forth by the Ohio Ninth District Court of Appeals, the facts are as follows.
On April 10, 2012, Petitioner pleaded guilty to one count of possession of marijuana, in violation of Ohio Rev. Code § 2925.11(A)(C)(3), and one count of failure to control, in violation of Ohio Rev. Code § 4511.202.
At Petitioner's trial, the jury heard testimony from the passerby, Officers Gump and Crockett who were on the scene, and the toxicologist, Steve Perch who ran Greer's alcohol blood sample.
Since Petitioner had earlier suffered five or more OVI offenses within the past twenty years, the two-OVI related counts carried a mandatory prison specification.
Petitioner sought relief from his conviction.
One June 1, 2012, Petitioner filed a timely notice of appeal to the Ninth District Court of Appeals.
On October 15, 2013, Petitioner timely filed a notice of appeal to the Supreme Court of Ohio.
On January 7, 2014, the Ninth District Court of Appeals also denied Petitioner's motion to re-open his direct appeal.
On March 31, 2014, Petitioner filed a notice of appeal to the Supreme Court of Ohio.
On September 2, 2014, Petitioner filed the instant petition for a writ of federal habeas corpus.
On October 23, 2015, Magistrate Judge Limbert filed the Report and Recommendation (R&R).
The Federal Magistrates Act requires a district court to conduct a de novo review of those portions of the R&R to which the parties have properly objected.
As a general rule, a habeas petitioner must exhaust all possible state remedies or have no remaining state remedies before a federal court will review a petition for habeas corpus.
If the highest state court has had the opportunity to hear the claims on the merits, the petitioner is said to have exhausted state remedies, and his habeas claim on the same issues may be heard by a federal court. Alternatively, if highest state court did not have the opportunity to hear the claim because the petitioner was barred by an "independent and adequate" state procedural rule, his claims are procedurally barred, and may not be heard by a federal court.
Petitioner Greer's first ground for relief alleges ineffective assistance of counsel based on counsel's failure to suppress the blood alcohol test results.
The Report and Recommendation concludes that Greer's first two claims are not procedurally defaulted. Greer appealed the substance of his first two claims to the Ohio Supreme Court on October 15, 2013.
In contrast, the Report and Recommendation concluded that Greer had procedurally defaulted on his latter three grounds for relief:
The Report and Recommendation correctly points out that these issues were not raised in the first appeal to the Ohio Supreme Court.
On January 7, 2014, the Ninth District Court of Appeals denied Petitioner's motion to reopen his direct appeal.
On March 31, 2014, Petitioner filed his notice of appeal to the Supreme Court.
Greer did not give the Ohio Supreme Court a full or fair opportunity to rule on the Ninth District Court of Appeals' January 7, 2014 decision.
As a result, Greer's failed to exhaust state remedies on his third, fourth, and fifth grounds. These grounds are now procedurally barred under Ohio's res judicata rule. Nevertheless, the Court reviews the merits of all three grounds. As explained below, even if the grounds were not procedurally barred, each would lose.
The AEDPA also provides the standard of review on the merits of a petition for a writ of habeas corpus. Under § 2254, a petitioner is entitled to relief if he is held in custody in violation of the United States Constitution or laws or treaties of the United States.
The Supreme Court has explained that "a federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable."
To prevail on a claim for constitutionally-defective ineffective assistance of counsel claim, a habeas petitioner must satisfy the two-pronged Strickland v. Washington test.
First, the petitioner must show that his counsel's performance was deficient, meaning it "fell below an objective standard of reasonableness."
Second, the petitioner must show that the deficiency prejudiced his defense; in other words, "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
The Court addresses each of Petitioner's five grounds for relief in turn.
In his first ground for relief, Petitioner Greer writes that he received ineffective assistance of trial counsel, "when counsel failed to file a motion to suppress the blood test results."
In particular, Greer argues that there were grounds for a motion to suppress based on two alleged violations of
Second, he writes that there is no evidence that the vial used to collect his blood sample contained a solid anticoagulant.
Greer's counsel never moved to suppress the blood test results based on these alleged violations of § 3701-53-05. However, the state is only required to show substantial compliance with § 3701-53-05 after a motion to suppress is filed. "Any statutory and/or regulatory provision not specifically challenged in a motion to suppress is deemed satisfied."
This catch-22 does not rise to the level of ineffective assistance of counsel. The Report and Recommendation is correct that the failure to suppress may well have been trial strategy. More importantly, the Report and Recommendation is correct that Petitioner cannot successfully meet the second prong of the Stickland test. There is no evidence of a "reasonable probability" that the outcome of the case would have been different if trial counsel had moved to suppress. There is no indication that a proper antiseptic was not used. And there is no indication that the vials did not have a solid anti-coagulant. Officer Gump's testimony that the vials were "empty" is not convincing, as he may merely have meant that the vials were empty of blood. Indeed, when the toxicologist Perch testified, he said that that the blood kits included "tubes with preservatives" that met the requirements for Ohio's Judiciary Code.
Greer raises a third ground for ineffective assistance of counsel that requires slightly different analysis. Greer points out that the blood test report produced to defense counsel did not have the signature of the person who had drawn the blood, in violation of Ohio Rev. Code § 4511.19(E)(1)(a).
The prosecution opposed, arguing that the report did not need to meet the § 4511.19(E) requirements because the report was not being used as prima facie evidence and was instead being brought in after the toxicologist Perch laid a foundation.
The judge denied the motion to exclude. He did not point to the timeliness of the motion. Instead, the Judge specifically asked whether "Mr. Perch will be testifying from his original report or a copy of his original report that has signatures and everything else on it?"
Greer's ineffective assistance of counsel claim on this ground also loses. First, it appears that counsel did act reasonably in moving to exclude the document based on the § 4511.19(E) errors. Failing to move to suppress earlier does not appear to have prejudiced Greer's case. Second, the prosecution indicated that the copy of the report used at trial would have all the required signatures. The copy Greer provides in his habeas is labeled as the one produced to defense counsel prior to trial.
Greer cannot show that there was a reasonable probability of a different outcome had his counsel moved to suppress the blood evidence.
In his second ground for relief, Petitioner Greer writes, "The state appellate court decision was contrary to, and was based on an unreasonable application of, Missouri v. McNeely, [569 U.S. ___, 133 S.Ct. 1552, 1558, 185 L.Ed.2d 693 (2013)]."
In Greer's briefing and in the Report and Recommendation this ground for relief expands into two separate arguments. First, Greer argues that he received ineffective assistance of counsel when his trial counsel did not argue that there had been a Fourth Amendment violation in drawing his blood pursuant to Ohio Rev. Code. § 4511.19(A)(1)(a). Second, Greer argues that, on the merits, McNeely should be applied retroactively to his case and should result in this Court finding § 4511.19(A)(1)(a) unconstitutional. Both arguments lose.
The arguments at hand require some additional background on Greer's blood draw, and the case he cites to, Missouri v. McNeely. On the night of Greer's arrest in 2012, police offered Greer the opportunity to submit to a breathalyzer test.
After Greer's 2012 conviction, the United States Supreme Court addressed the constitutionality of alcohol blood tests in Missouri v. McNeely.
Greer frames Ohio's blood draw statute as mandatory, and unconstitutional in light of McNeely.
However, Greer's arguments in this habeas petition lose.
As an initial matter, the Report and Recommendation is correct that it is not objectively unreasonable for Greer's trial counsel to have not made a Fourth Amendment argument at the time of Greer's trial. An attorney cannot be expected to raise arguments based on a Supreme Court case that has not yet been decided. As a result, the first prong of Strickland test is not met, and Greer's ineffective assistance claim loses.
The more complex question is whether Greer is entitled to relief based on the merits of McNeely. He is not. The Report and Recommendation reaches this same conclusion by making two arguments: first, that McNeely does not make Ohio's statute unconstitutional because the blood draw remains discretionary under § 4511.191(A)(5); and second, that Greer's warrantless blood draw was reasonable under the circumstances, regardless.
Instead, this Court concludes that even if § 4511.191(A)(5) were unconstitutional, and even if Greer could show that the officer did not have grounds for a warrantless blood draw, the officer's actions on the night of January 2, 2012 were reasonable based on existing law at the time. As a result, the blood draw was admissible under the good faith exception.
Generally, evidence obtained in violation of the Fourth Amendment must be excluded from the courts. However, application of this exclusionary rule is not automatic or reflexive.
At the time of Greer's blood draw, it was "objectively reasonable" for the officers to believe that they had a right to draw blood under § 4511.191(A)(5). The Ohio Court of Appeals had upheld § 4511.191(A)(5) as constitutional only a year before, relying on United States Supreme Court precedent that was still good at the time of Greer's 2012 arrest.
As a result, Greer cannot show that he is entitled to relief under § 2254 under his second claim.
In his third ground for relief, Petitioner Greer writes that he received ineffective assistance of appellate counsel when "appellate counsel failed to raise trial counsel's ineffectiveness when counsel failed to object to the State's introduction of the blood test results under, Crawford v. Washington, 541 U.S. 36 (2004), violating the petitioner's Sixth Amendment confrontation rights."
In particular, Greer argues that the blood test results are testimonial evidence, and that under the Supreme Court's Confrontation Clause precedent, he should have had the opportunity to cross-examine the nurse who drew his blood. Greer relies heavily on State v. Syx, in which the Ohio Court of Appeals, Second District, concluded that blood test results should have been dismissed because neither the phlebotomist or the toxicologist were called to lay a foundation for the blood test results.
Greer's case does not suffer from the same flaw as the case in Syx. The toxicologist from the Summit County Medical Examiner's office who actually ran the sample, Steve Perch, testified. He testified as to the procedures in the office for collecting and storing samples
Moreover, Officer Gump offered first-hand testimony of the procedure used to collect the blood sample and maintain the chain of custody.
Greer claims that he had a right to cross-examine the nurse in particular because of Ohio's requirements that the nurse use a non-alcohol antiseptic and that there be an anticoagulant. However, no testimony was offered as to these two conclusions. As described above, Ohio only requires the government to affirmatively prove regulation compliance after trial counsel moves to suppress.
Greer's constitutional right to confront the witnesses against him has been satisfied. He cannot show that there was a violation of the Confrontation Clause. As a result, he cannot show that he was prejudiced by the actions of his appellate counsel. His claim for ineffective assistance of counsel loses.
In his fourth ground for relief, Petitioner Greer writes that he received ineffective assistance of appellate counsel when his appellate attorney failed to challenge trial counsel's failure to sever Greer's marijuana charge, and failed to request a limiting or cautionary jury instruction related to the marijuana charge.
Greer had been charged with, and plead guilty to, a possession of marijuana charge prior to his OVI trial. The marijuana possession had arisen from the same incident. The police had found a marijuana cigarette in Greer's car. At trial, the only mention of marijuana came during Officer Gump's testimony. He said that while he was patting Greer down he was "looking for a wallet with an ID."
Greer cannot show a reasonable probability of a different outcome had his marijuana charge been severed. He has not demonstrated prejudice. The mention of marijuana played such a minimal role at the trial, that there's no reasonable probability that a limiting instruction or severed charge would have changed the outcome of Greer's trial.
As Greer cannot show prejudice, he cannot show that he was prejudiced by the actions of his appellate counsel. His claim for ineffective assistance of counsel loses.
Greer emphasizes that this court should consider the cumulative effect of his counsel's ineffective assistance. But all of Greer's other claims are meritless. There is no cumulative effect to consider.
In his fifth ground for relief, Greer states that:
Under
By the eve of trial, Greer's counsel had not yet received these documents for toxicologist Perch. Before voir dire, Greer's counsel objected to the Rule 16(K) violation because the defense could not "properly prepare" to cross-examine Perch, and as a result they would be prejudiced.
After Greer's counsel objected, the prosecution recognized the error, and repeatedly said that if defense counsel "are being harmed in any fashion by the fact they don't have the expert's background . . . then the proper thing to do is to give them a continuance and pick a new trial date."
After discussion, defense counsel agreed that if Perch testified the next day, and counsel got the relevant documents that afternoon, there was no need for a continuance. Counsel said: "Your Honor, if we can get it before tomorrow before he testifies over the — after trial today, I can do any and all investigation of those issues and be prepared for tomorrow."
The judge responded "Are you sure that is what you want to do?" Defense counsel confirmed that it was.
Greer now complains that his appellate counsel did not raise the Rule 16(K) violation on his appeal. However, even if counsel had, counsel would not have been able to show prejudice because of the Rule 16(K) error. Greer's trial counsel said he could be prepared to crossexamine Perch. And, indeed, counsel went on to cross examine Perch on a series of detailed and technical issues.
For the foregoing reasons, this Court
IT IS SO ORDERED.
Greer also appears to make the argument that his appellate counsel should have raised the substantive McNeely argument on his direct appeal. Doc. 1-1 at 18-19. To the extent Greer is making another ineffective assistance of counsel claim, he loses. As described at length above, even if McNeely applied retroactively, it would not have altered Greer's case. The Ninth District Court of Appeals reached this same conclusion. Doc. 4-21 at 3-4. Greer cannot meet Strickland's prejudice prong.
