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 Ronald E. Harris ("Harris" or "Petitioner") brings this petition for a writ of habeas corpus. In the Champaign County Common Pleas Court, Harris was convicted by jury verdict of four counts of felonious assault, each with a firearm specification, one count of improperly discharging a firearm at or into habitation with a firearm specification, and two counts of having weapons while under disability. (Journal Entry of Judgment, Conviction and Sentence, Doc. 8-1, PAGEID 212-14.) Harris is now serving twelve years of imprisonment in Respondent's custody. (See id.)
Proceeding pro se, Harris pleads four grounds for relief. Because his claims are not clearly articulated, the Court has liberally construed the petition in Harris's favor and carefully reviewed the state court record, including the trial court transcript. Specifically, Harris raises the following grounds for relief:
(Pet., 1) (quoting verbatim) (capitalization altered).
In May 2006, Harris was indicted on eight counts.
Thereafter, Harris pleaded not guilty to all counts and the case was tried to a jury. The jury found Harris guilty on seven counts and on November 13, 2006, the trial court sentenced him to a total of twelve years imprisonment. (Journal Entry of Judgment, Conviction and Sentence, Doc. 8-1, PAGEID 200-03.)
On December 11, 2006, with the assistance of counsel, Harris timely appealed his conviction and sentence to the Ohio Court of Appeals. (Notice of Appeal, Doc. 8-1, PAGEID 217). However, on September 20, 2007, Harris moved to strike the brief his appellate counsel had previously filed so that he could submit his own brief. (Motion to Strike, Doc. 8-1, PAGEID 224-26.) The Court of Appeals granted Harris's motion, State v. Harris, No. 06-CA-39 (Ohio Ct.App.2d Dist. Dec. 4, 2007); (Doc. 8-1, PAGEID 228), and Harris submitted his own brief raising the following assignments of error:
(Appellant's Br., Doc. 8-1, PAGEID 229-51) (quoting verbatim). On April 11, 2008, the Court of Appeals overruled Harris's assignments of error. State v. Harris, No. 2006 CA 39, 2008 WL 1114929 (Ohio Ct. App.2d Dist. Apr. 11, 2008); (Doc. 8-1, PAGEID 316-40.)
Although Harris attempted to file a timely Notice of Appeal to the Ohio Supreme Court on or about May 14, 2008 — thirteen days before the 45-day filing deadline — the documents were returned to
While his direct appeal was pending, Harris filed a petition for post-conviction relief, asserting six claims:
(Appellant's Br., Doc. 8-1, PAGEID 341-46) (quoting verbatim). On September 27, 2007, the trial court granted summary judgment in favor of the State, finding that Harris failed to present evidence to support his claims, and alternatively, that those claims raised on direct appeal were barred by res judicata. State v. Harris, No. 2006 CR 141 (Champaign Cnty. Ct.Com.Pl. Sept. 27, 2007); (Doc. 8-1, PAGEID 378-84.)
Harris timely appealed the denial of his post-conviction petition, raising one assignment of error: "The trial court erred when it ruled for summary judgment in favor of the State/Appellee thus denying the Appellant his petition for post conviction relief and a[n] evidentiary hearing, violating his Constitutional Sixth and Fourth Amendment Rights as well as violating Ohio law." (Appellant's Br., Doc. 8-1, PAGEID 401-15) (capitalization altered). On October 3, 2008, the Ohio Court of Appeals affirmed the trial court's judgment. State v. Harris, No. 07-CA-32, 2008 WL 4447722 (Ohio Ct.App.2d Dist. Oct. 3, 2008); (Doc. 8-1, PAGEID 463-72.)
Harris then appealed the denial of his post-conviction petition to the Ohio Supreme Court, arguing three propositions of law:
(Appellant's Br., Doc. 8-1, PAGEID 475-82) (brackets added) (capitalization altered). However, the Ohio Supreme Court declined to hear Harris's appeal. State v. Harris, No. 2008-2210, 901 N.E.2d 246 (Ohio Feb. 18, 2009); (Doc. 8-1, PAGEID 497.)
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 of trial court records. Mason v. Mitchell, 320 F.3d 604, 614 (6th Cir.2003).
The Court construes Ground One as asserting a Sixth Amendment right-to-counsel violation based on the trial court's refusal to remove Harris's appointed counsel. Ground Two claims that there was insufficient evidence to support his guilty verdict, in violation of the Due Process Clause, and in the alternative, his guilty verdict was against the manifest weight of the evidence.
To determine whether a claim is precluded from habeas review under the procedural default doctrine, a court must apply the three-part test established in Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986):
Eley v. Bagley, 604 F.3d 958, 964-65 (6th Cir.2010) (citation omitted).
Here, Harris raised Grounds One and Two on direct appeal to the Court of Appeals. Nonetheless, the claims are procedurally barred because he failed to perfect his appeal to the Ohio Supreme Court within forty-five days of the Court of Appeals' decision, in violation of Ohio Supreme Court Rule 2.2(A), and the Ohio Supreme Court denied his motion for delayed appeal. State v. Harris, No. 2008-1529, 894 N.E.2d 330 (Ohio Oct. 1, 2008); (Doc. 8-1, PAGEID578.) The Ohio Supreme Court's denial of a motion for delayed appeal procedurally bars a claim from federal habeas review. Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir.2004) (per curiam). Further, because it is assumed that a court enforces an applicable procedural bar, the claim is procedurally barred even if, as in this case, the Ohio Supreme Court did not explain why it denied the motion. Id.
In addition, it should be noted that Ground One was not preserved for habeas review even though Harris raised it as a sub-claim of his ineffective assistance of counsel claim — arguing his trial counsel was ineffective due to the breakdown in the attorney-client relationship — in his post-conviction petition. (Appellant's Reply, Doc. 8-1, PAGEID 369-70.) Harris's post-conviction ineffective assistance of counsel sub-claim is distinguishable from his current Sixth Amendment denial-of-counsel claim. To avoid a procedural default, a petitioner must have presented his claims to the state courts "under the same theory in which it is later presented in federal court." Wong v. Money, 142 F.3d 313, 322 (6th Cir.1998).
Therefore, Grounds One and Two are procedurally barred unless Harris "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). To meet the "cause" prong, a habeas petitioner must "show that some objective factor external to the defense" caused his failure to comply with the state's procedural rule, Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), and if the petitioner fails to do so, the Court need not consider the prejudice prong. Smith v. Murray, 477 U.S. 527, 533-34, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986). The "miscarriage of justice" standard requires the petitioner to present evidence that he is actually innocent, showing "it is more likely than not
Therefore, Harris has failed to overcome the procedural default of Grounds One and Two and the claims should be dismissed.
Finally, although the Court has determined that Grounds One and Two are procedurally barred, it will briefly address the claims on the merits. Because an indigent defendant does not have an absolute right to choose his appointed counsel, Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988), a defendant must show "good cause" to have new counsel appointed. United States v. Iles, 906 F.2d 1122, 1130 (6th Cir.1990). Here, the Court of Appeals extensively reviewed the record and determined that Harris failed to show the requisite good cause, see State v. Harris, No. 2006 CA 39, 2008 WL 1114929 (Ohio Ct.App.2d Dist. Apr. 11, 2008); (Doc. 8-1, PAGEID 318-19), and the Court will defer to those factual findings. 28 U.S.C. 2254(e)(1).
The Court of Appeals attributed Harris's dissatisfaction with his counsel to the following: (1) Harris's disappointment that his attorney had not convinced the prosecutor to dismiss the charges; and (2) Harris's mental state, which was partially due to his failure to take his prescribed medication. See State v. Harris, No. 2006 CA 39, 2008 WL 1114929 (Ohio Ct.App.2d Dist. Apr. 11, 2008); (Doc. 8-1, PAGEID 318-19.) This does not constitute good cause to warrant the appointment of new counsel. See United States v. Vasquez, 560 F.3d 461, 468 (6th Cir.2009). Further, having reviewed the trial court record, the Court finds that Harris's counsel provided him with an adequate defense. See id. Therefore, Ground One also fails on the merits.
Likewise, Ground Two is meritless.
In Ground Three, Harris claims that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendment. Construing Harris's petition liberally, the Court finds he alleges that his counsel was ineffective on the following grounds: (1) he did not seek a second competency evaluation;
The State contends that all of these subclaims, other than one, are procedurally defaulted because Harris failed to timely perfect his direct appeal to the Ohio Supreme Court. The Court will thus review each sub-claim to determine whether it is procedurally defaulted.
Harris's first sub-claim was raised on direct appeal, but as discussed above, it is procedurally defaulted because he failed to timely appeal to the Ohio Supreme Court and his motion for delayed appeal was denied. See Bonilla, 370 F.3d at 497. Although Harris challenged the court's competency determination in his post-conviction petition, he did not claim that his counsel was ineffective for that reason. (See Appellant's Br., Doc. 8-1, PAGEID 341-45.) Because claims of ineffective assistance of counsel are based on an "analytically distinct" legal theory from the underlying claim, the underlying claim itself must be presented to the state courts to preserve the argument for habeas review. See White v. Mitchell, 431 F.3d 517, 526 (6th Cir.2005). Thus, the first subclaim is barred.
Third, Harris's claim that his counsel failed to object to the allegedly altered 911 recording is procedurally defaulted for the same reason: his motion for delayed appealed was denied. See Bonilla, 370 F.3d at 497. Further, Harris's allegation of prosecutorial misconduct regarding the 911 recording in his post-conviction petition did not preserve his present habeas ineffective assistance of counsel claim. See White, 431 F.3d at 526. In any event, Harris's claim would not be successful on the merits. As Harris has not presented any evidence to support his assertion that the 911 recording was altered, he has failed to demonstrate a reasonable probability that the proceeding would have been different had his counsel objected. See Strickland, 466 U.S. at 690, 104 S.Ct. 2052.
Harris's fourth, fifth and sixth sub-claims — his counsel failed to obtain a background check on him; failed to object to alleged jury tampering; and failed to object to the jury instructions — are procedurally defaulted. Harris did not present these issues on direct appeal or in his post-conviction relief petition. (See Appellant's Br., Doc. 8-1, PAGEID 229-51, 341-45.) Under Ohio Revised Code § 2953.23(A), a court cannot consider a second petition for post-conviction relief unless the petitioner demonstrates: (1) he or she he was "unavoidably prevented" from discovering the new evidence on which he relies; or (2) he is relying on a new federal or state right that applies retroactively. Ohio Rev. Code § 2953.23(A)(1) (West 2011). Therefore, because Harris failed to exhaust these subclaims and the Ohio courts would no longer entertain them, they are now procedurally defaulted. See Williams v. Anderson, 460 F.3d 789, 806 (6th Cir.2006).
Accordingly, as Harris has not demonstrated cause to overcome the procedural default, sub-claims one through six in Ground Three should be dismissed.
Finally, the remaining two subclaims — failing to call witnesses and being unprepared at trial — are not procedurally defaulted because they were properly raised in Harris's post-conviction petition. (See Appellant's Br., Doc. 8-1, PAGEID 341-45.) Accordingly, the Court will review these sub-claims on the merits.
To prevail on an ineffective assistance of counsel claim, a petitioner must meet the two-part Strickland v. Washington test by demonstrating that his counsel's performance was deficient, and that he was prejudiced as a result. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. 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,
With regard to his sub-claim that his trial counsel failed to interview and call the witnesses he had requested, the trial court held:
State v. Harris, No. 2006 CR 141 (Champaign Cnty.Ct.Com.Pl. Sept. 27, 2007); (Doc. 8-1, PAGEID 381.) On appeal, the Court of Appeals reiterated the trial court's finding: "As the trial court noted, Harris neglected to identify any particular witnesses or indicate what their testimony would have been. Therefore, he failed to show prejudice." State v. Harris, No. 07-CA-32, 2008 WL 4447722 (Ohio Ct.App.2d Dist. Oct. 3, 2008); (Doc. 8-1, PAGEID 466.)
Although the Court of Appeals did not cite Strickland v. Washington, its decision is still entitled to deference as long as the result is consistent with the Strickland standard. Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). In his post-conviction petition, Harris did not name any individuals which he believed should have been called. (See Appellant's Br., Doc. 8-1, PAGEID 342-45; Appellant's Reply, Doc. 8-1, PAGEID 368-72; Appellant's Br., Doc. 8-1, PAGEID 402). Thus, the Court of Appeals' decision is consistent with the Strickland standard. By not identifying the witnesses and their expected testimony, Harris failed to overcome the presumption that his counsel's decision not to call the witnesses was "sound trial strategy" and likewise failed to show that he was prejudiced. Strickland, 466 U.S. at 689, 694, 104 S.Ct. 2052.
With respect to his second subclaim that his counsel was unprepared at trial, the trial court held:
State v. Harris, No. 2006 CR 141 (Champaign Cnty. Ct. Com. Pl. Sept. 27, 2007); (Doc. 8-1, PAGEID 380.) On appeal, the Court of Appeals stated, "The trial court also found that the record belied Harris' conclusory allegations about a lack of trial preparation. Having witnessed trial counsel's performance, the trial court opined that counsel was adequately prepared." State v. Harris, No. 07-CA-32, 2008 WL 4447722 (Ohio Ct.App.2d Dist. Oct. 3, 2008); (Doc. 8-1, PAGEID 466.)
The Court of Appeals' decision was not an unreasonable application of Strickland. As the court noted, Harris did not offer any specificity as to how and when his counsel was unprepared during trial.
Accordingly, all the sub-claims in Ground Three should be dismissed.
In Ground Four, Harris contends that the prosecutor engaged in misconduct, thereby violating his due process rights. Construing the petition liberally, the Court finds that Harris alleges that the prosecutor engaged in the following acts of misconduct: (1) presented tampered evidence, i.e., the 911 recording; (2) presented perjured testimony; (3) presented evidence obtained with a faulty search warrant in violation of the Fourth Amendment; (4) permitted an assistant prosecutor to sit as a juror; (5) provided a "faulty" witness list; (6) convicted him on allied offenses;
The Court views Harris's first sub-claim — that the prosecutor admitted tampered evidence — as referring to the 911 recording. The State concedes that this claim is not procedurally defaulted. Therefore, the Court will review the first sub-claim on the merits.
In considering prosecutorial misconduct claims on habeas corpus review, the test is whether the conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process," Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (citation omitted), or whether it was "so egregious as to render the entire trial fundamentally unfair." Cook v. Bordenkircher, 602 F.2d 117, 119 (6th Cir. 1979). Clearly, a prosecutor's presentation of known false evidence violates a defendant's due process rights. Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). To prevail on such a claim, the defendant must demonstrate that the evidence was false, the prosecution knew it was false, and the false evidence was material. See United States v. O'Dell, 805 F.2d 637, 641-42 (6th Cir.1986).
In denying this claim on post-conviction review, the trial court stated:
State v. Harris, No. 2006 CR 141 (Champaign Cnty.Ct.Com.Pl. Sept. 27, 2007); (Doc. 8-1, PAGEID 381-82.) In affirming the trial court's denial of his post-conviction petition, the Court of Appeals held:
State v. Harris, No. 07-CA-32, 2008 WL 4447722 (Ohio Ct.App.2d Dist. Oct. 3, 2008); (Doc. 8-1, PAGEID 466-67.)
While it is true that Harris did not specify what was omitted or added to the 911 recording in his original petition for post-conviction relief, on appeal to the Ohio Court of Appeals, Harris did provide some insight into how it was allegedly altered. Specifically, he asserted that on the original 911 tape, the victim stated he was driving East on Hill Street and "for no reason Ron Harris shot at me." (Appellant's Br., Doc. 8-1, PAGEID 411.) Harris maintains that this statement and others were deleted from the recording. (See id.) However, Harris has never provided any reliable evidence to support his claim. Instead, in the state court proceedings, Harris suggested that two parts of testimony support his claim. First, he pointed out that the 911 dispatcher stated it was a "recording within a recording," (Trial Tr., Doc. 9-6, PAGEID 973), but that, in itself, does not mean that the 911 tapes were altered. Second, in his post-conviction appeal, Harris alleged that Nolan Adams, Jr., the victim, stated that he had a police scanner. Rather, Nolan Adams, Jr. testified that his father may have heard about the incident on the scanner. (Id. at 770.)
Having reviewed the trial transcript, the Court finds that there was no evidence in the record that the 911 recording was altered. The prosecutor laid a proper foundation through the 911 dispatcher's testimony. (See id. at PAGEID 968-74.) In addition, the two parties to the 911 call — Nolan Adams, Jr. and Officer Shawn Schmidt — confirmed that the recordings were accurate after listening to them. (Trial Tr., Doc. 9-5, PAGEID 768-69; Trial Tr. Doc. 9-6, PAGEID 969-74.) Thus, Harris not only failed to prove that the 911 recording was actually false, he failed to show that the prosecutor knew it was false. Accordingly, the Court of Appeals' decision was not contrary to clearly established Supreme Court precedent.
Next, as the State also concedes that the second sub-claim — that the prosecutor offered Sergeant Reese's perjured testimony — is not procedurally barred, the Court will review it on the merits. In addressing this sub-claim, the Court of Appeals wrote:
State v. Harris, No. 07-CA-32, 2008 WL 4447722 (Ohio Ct.App.2d Dist. Oct. 3, 2008); (Doc. 8-1, PAGEID 468.)
A defendant's due process rights are violated when the prosecutor knowingly suborns perjury to obtain a conviction. United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.1989). To prove that the prosecutor engaged in such conduct, the defendant must demonstrate that the testimony referred to was actually false, it was material, and the prosecutor knew it was false. Id. Further, the statement must be "indisputably false," rather than simply misleading. Id. at 823
Here, as the Ohio Court of Appeals pointed out, Harris's claim fails because he has not demonstrated that Sergeant Reese's testimony was "indisputably false." Even assuming that Harris's unsupported assertion was true and someone else had been in the house, it still would not show that Sergeant Reese lied and the prosecutor knew he was lying. Therefore, the Court of Appeals' holding was not contrary to clearly established Supreme Court precedent.
The remaining sub-claims — (3) not suppressing the evidence obtained with a faulty warrant;
Finally, as discussed above, Harris has not demonstrated there was cause and prejudice to excuse his procedural default. Accordingly, Ground Four should be dismissed.
Harris moved to file a second habeas corpus petition, which the Sixth Circuit Court of Appeals denied on January 21, 2011. In re: Harris, No. 10-3254 (6th Cir. Jan. 21, 2011); (Doc. 19.) Subsequently, Harris filed a motion in this Court, which the Court liberally construes as a request to reconsider the Sixth Circuit's denial of his second habeas petition. (Doc. 20.) This motion should be denied because the Court cannot consider a second habeas petition unless the Sixth Circuit authorizes it do so. 28 U.S.C. § 2244(3).
Additionally, the Court notes that Harris's motion to expand the record, which was denied without prejudice on August 25, 2009, is moot. (Doc. 12.) As the Court has now determined that the majority of Harris's claims are procedurally defaulted and that those remaining fail on the merits, it would be futile to expand the record. Therefore, that motion and all other motions pending herein should be denied as moot.
It is therefore
October 7, 2011
This case is before the Court on Petitioner's Objections to the Report and Recommendations of the Magistrate Judge (Doc. 31) and Petitioner's Motion for Reconsideration. (Doc. 32). On October 7, 2011, the Magistrate Judge reviewed the pleadings in this case and issued a Report and Recommendations recommending that Petitioner's petition for writ of habeas corpus be denied with prejudice, that all other pending motions be denied as moot and that this case be terminated. (Doc. 22). Thereafter, Petitioner moved for an extension of time to file objections. (Doc. 23). The Magistrate Judge granted Petitioner an extension up to and including November 25, 2011 to file objections. (Doc. 24).
On December 6, 2011, following a de novo review of the record, and noting the absence of any filed objections to the Report and Recommendations of the Magistrate Judge, the Court adopted the findings set forth by the Magistrate Judge in their entirety and denied and dismissed Petitioner's petition. (Doc. 29). Thereafter, on or about December 12, 2011, the Clerk of Court received a filing from Petitioner
On December 21, 2011, the Clerk of Court received another filing by Petitioner captioned "Review of the Record," which was docketed that same day. (Doc. 32). The initial paragraph of the December 21 filing requests reconsideration, and accordingly, the Court liberally construes the December 21 filing as a motion requesting the Court to consider his Objections and to amend judgment under Fed.R.Civ.P. 59(e).
With regard to Petitioner's Objections, the certificate of service affixed thereto certifies that they were mailed on December 11, 2011, well after the extended deadline for filing Objections. Accordingly, the Objections are untimely. Further, Petitioner's Objections are overly general, nonspecific and fail to dispute any specific portion of the Report and Recommendation. See Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir.2006) (stating that "[o]verly general objections do not satisfy the objection requirement" and that "[t]he objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious") (citing Miller v. Currie, 50 F.3d 373 (6th Cir.1995)).
Accordingly, based on the foregoing, Petitioner's Objections are
