ELIZABETH A. PRESTON DEAVERS, Magistrate Judge.
Petitioner, a state prisoner, brings the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the instant petition, Respondent's Return of Writ, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge
The Ohio Tenth District Court of Appeals summarized the facts of this case as follows:
State v. Barkley, 185 Ohio App.3d 686, 688 (Ohio App. 10
See id. On October 20, 2009, the appellate court affirmed the judgment of the trial court. Id. On February 10, 2010, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. State v. Barkley, 124 Ohio St.3d 1477 (2010).
On December 30, 2010, Petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner asserts that his convictions violate the Double Jeopardy Clause, as they constitute allied offenses based on one act, and that the indictment was structurally defective, depriving him of the right to notice of the charges against him, by failing to include the required mens rea of "recklessness" on the charges of aggravated robbery. See Petition. It is the position of the Respondent that these claims are waived or without merit.
In claim one, Petitioner asserts that his convictions violate the Double Jeopardy Clause. Respondent preliminarily contends that Petitioner failed to fairly present this same federal issue to the state courts because he argued his claim under Ohio's statutes on allied offenses of similar import. This Court, however, has previously rejected this same argument, noting that Ohio's statute on allied offenses, O.R.C. 2941.25, as defined by the Ohio Supreme Court in State v. Rance, 85 Ohio St.3d 632 (1999), is derived from concerns of the Double Jeopardy Clause. See, e.g. Spence v. Sheets, 675 F.Supp.2d 792 (S.D. Ohio 2009); Helton v. Jeffreys, No.2:06-cv-558, 2007 WL 1100428, at *4-5 (S.D. Ohio April 10, 2007)(citing Palmer v. Haviland, No.C-1-04-28, 2006 WL 1308219 (S.D. Ohio May 11, 2006). This Court therefore likewise concludes that Petitioner has fairly presented his federal double jeopardy claim to the Ohio courts.
The state appellate court rejected Petitioner's claim, reasoning as follows:
Kidnapping is defined by R.C. 2905.01(A)(2) and (3) as follows:
Aggravated robbery is defined by R.C. 2911.01(A)(1) and (2):
(Emphasis added.)
State v. Barkley, 185 Ohio App. 3d at 687-89.
The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. § 2254(e)(1) provides:
Further, a federal habeas court may not grant relief unless the state court's decision was contrary to or an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts in light of the evidence that was presented. 28 U.S.C. § 2254(d) provides:
The United States Supreme Court has explained:
Renico v. Lett, ___ U.S. ____, 130 S.Ct. 1855,1862 (2010)(footnote omitted.)
Wong v. Smith, 131 S.Ct.10 (Mem), 2010 WL 752363, at *2 (Nov. 1, 2010). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, ___ U.S. ___, ___, 131 S.Ct. 770, 786 (2011)(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Petitioner has failed to meet this standard here.
The Double Jeopardy Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The clause has been interpreted as protecting criminal defendants from successive prosecutions for the same offense after acquittal or conviction, as well as from multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). The traditional test for double jeopardy claims is the "same elements" test set forth in Blockburger v. United States, 284 U.S. 299, 304 (1932) (requiring the court to determine whether each charged offense "requires proof of an additional fact which the other does not"). The Blockburger test is designed to deal with the situation where closely connected conduct results in multiple charges under separate statutes. Under Blockburger, the critical question is whether the multiple charges in reality constitute the same offense. Thus, the Blockburger test focuses on whether the statutory elements of the two crimes charged are duplicative. If the elements of the two statutes are substantially the same, then double jeopardy is violated by charging the defendant under both.
In view of the facts of this case, and applying the test set forth in Blockburger, this Court is not persuaded that the state appellate court's conclusion that evidence reflected separate criminal acts due to the prolonged restraint of the movement of the victims and that petitioner's convictions therefore did not violate the Double Jeopardy Clause was unreasonable so as to justify federal habeas corpus relief. 28 U.S.C. § 2254(d), (e); see Jones v. Baker, 35 F.3d 566, unpublished, 1994 WL 464191 (6th Cir. August 26, 1994) (no double jeopardy violation where kidnapping not "merely incidental" to aggravated robbery and involved substantial restraint of the victim); Watkins v. Schotten, 103 F.3d 132, unpublished, 1996 WL 690159 (6th Cir. Nov. 27, 1996) (no double jeopardy violation on aggravated robbery and kidnapping convictions where the offenses were committed separately with separate animus and since the crimes have separate elements); McKitrick v. Smith, 2009 WL 1067321 (N.D. Ohio April 21, 2009) (trial court's finding that petitioner had "separate animi" for robbery and kidnapping is due deference in habeas proceedings and therefore petitioner's convictions did not violate Blockburger).
Claim one is without merit.
In claim two, Petitioner asserts that his indictment was structurally defective and deprived him of the right to notice of the charges against him, in violation of due process, because the charges on aggravated robbery failed to include the required mens rea of recklessness. Respondent correctly notes that Petitioner failed to present this claim as a federal constitutional issue to the state appellate court. See Exhibit 6 to Return of Writ. Petitioner argued solely that the indictment failed to comply with Ohio law. He did not, however, contend that he was unconstitutionally denied fair notice of the charges against him, or argue that the indictment was otherwise constitutionally defective. See id.
In order to exhaust available state remedies, a petitioner must first fairly present the substance of his federal habeas corpus claims to the state courts. Picard v. Connor, 404 U.S. 270, 275 (1971); Anderson v.Harless, 459 U.S. 4, 6 (1982). "The state courts must be provided with a fair opportunity to apply controlling legal principles to the facts bearing upon petitioner's constitutional claims." Sampson v. Love, 782 F.2d 53, 55 (6th Cir. 1986). Petitioner does not fairly present his claim simply because the necessary facts supporting a federal constitutional claim are present or because the constitutional claim appears self evident. Haggins v. Warden, 715 F.2d 1050, 1054 (6th Cir. 1983)(citing Harless, 459 U.S. at 6). Furthermore, "[a] petitioner `fairly presents' his claim to the state courts by citing a provision of the Constitution, federal decisions employing constitutional analysis, or state decisions employing constitutional analysis in similar fact patterns." Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993)(citing Franklin v. Rose, 811 F. 2s 322, 326 (6th Cir. 1987)). Courts normally require more than a single broad generalization that petitioner was denied a "fair trial" or "due process of law." Franklin, 811 F.2d at 326; Petrucelli v. Coombe, 735 F.2d 684, 688 (6th Cir. 1984). Petitioner, however, need not "cite book and verse on the federal constitution." Picard, 404 U.S. at 277 (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1960)). The Sixth Circuit has strictly followed the requirement that petitioner fairly presented his federal constitutional claims to the state courts as a precondition to federal habeas review. Weaver v. Foltz, 888 F.2d 1097, 1098 (6th Cir. 1989).
Moreover, Petitioner has failed to establish cause for his failure to present claim two to the state courts. He thereby has waived this claim for federal habeas corpus review. To the extent that Petitioner raises an issue regarding the alleged violation of state law, this claim fails to present an issue appropriate for federal habeas corpus relief. 28 U.S.C. § 2254(a).
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.
