Opinion
CASE NO. 2:14-CV-0245
03-24-2015
CARLOS DAVENPORT, Petitioner, v. WARDEN, ROSS CORRECTIONAL INSTITUTION, Respondent.
JUDGE GEORGE C. SMITH
ORDER and REPORT AND RECOMMENDATION
Petitioner, a state prisoner filed this action 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, Petitioner's Motion to Stay and Amend, Respondent's Response in Opposition, Petitioner's Reply to the Response in Opposition, and the exhibits of the parties. For the reasons that follow, Petitioner's Motion to Stay and Amend (Doc. 7) will be GRANTED in part, and DENIED in part. Further, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
I. Facts and Procedural History
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:
Davenport was indicted on two charges of raping a child under the age of 13 and one charge of kidnapping incident to the conduct involved in the rape charges. After hearing evidence, a jury convicted Davenport of the charges. The judge assigned to the case sentenced Davenport to consecutive terms of imprisonment of 25 years to life on the rape charges and considered the kidnapping charge as having merged with the rape conviction.
Davenport was accused of forcing himself on TW's daughter. Once the daughter made her claims to her mother about Davenport's conduct, the daughter was examined and most of the
child's hymen was found to be gone. The daughter was only 10 at the time.State v. Davenport, 2012 WL 5462764, *1 (Franklin Co. App. Nov. 8, 2012). On March 13, 2013, the Ohio Supreme Court declined to hear Petitioner's appeal. State v. Davenport, 134 Ohio St.3d 1487 (March 13, 2013).
At the trial, both the mother and daughter testified. The child's testimony clearly indicated that Davenport had engaged in sexual activity with her. The medical testimony clearly demonstrated that the child had been forcibly penetrated. The elements of the rape charges were proved.
Petitioner also filed an application to reopen the appeal pursuant to Ohio Appellate Rules 26(B). The court of appeals described the application this way:
Carlos Davenport has filed an application to reopen his direct appeal, alleging that his appellate counsel rendered ineffective assistance of counsel. Davenport and his new counsel rely on App.R. 26(B), which reads:
(1) A defendant in a criminal case may apply for reopening of the appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of appellate counsel. An application for reopening shall be filed in the court of appeals where the appeal was decided within ninety days from journalization of the appellate judgment unless the applicant shows good cause for filing at a later time.
(2) An application for reopening shall contain all of the following:
(a) The appellate case number in which reopening is sought and the trial court case number or numbers from which the appeal was taken;
(b) A showing of good cause for untimely filing if the application is filed more than ninety days after journalization of the appellate judgment.
(c) One or more assignments of error or arguments in support of assignments of error that previously were not considered on the merits in the case by any appellate court or that were considered on an incomplete record because of appellate counsel's deficient representation;
(d) A sworn statement of the basis for the claim that appellate counsel's representation was deficient with respect to the assignments of error or arguments raised pursuant to division (B)(2)(c) of this rule and the manner in which the deficiency prejudicially affected the outcome of the appeal, which may include citations to applicable authorities and references to the record;
(e) Any parts of the record available to the applicant and all supplemental affidavits upon which the applicant relies.
(3) The applicant shall furnish an additional copy of the application to the clerk of the court of appeals who shall serve it on the attorney for the prosecution. The attorney for the prosecution, within thirty days from the filing of the application, may file and serve affidavits, parts of the record, and a memorandum of law in opposition to the application.
(4) An application for reopening and an opposing memorandum shall not exceed ten pages, exclusive of affidavits and parts of the record. Oral argument of an application for reopening shall not be permitted except at the request of the court.
(5) An application for reopening shall be granted if there is a genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal.
(6) If the court denies the application, it shall state in the entry the reasons for denial. If the court grants the application, it shall do both of the following:
(a) appoint counsel to represent the applicant if the applicant is indigent and not currently represented;
(b) impose conditions, if any, necessary to preserve the status quo during pendency of the reopened appeal.
The clerk shall serve notice of journalization of the entry on the parties and, if the application is granted, on the clerk of the trial court.
(7) If the application is granted, the case shall proceed as on an initial appeal in accordance with these rules except that the court may limit its review to those assignments of error and arguments not previously considered. The time limits for preparation and transmission of the record pursuant to App.R. 9 and 10 shall run
from journalization of the entry granting the application. The parties shall address in their briefs the claim that representation by prior appellate counsel was deficient and that the applicant was prejudiced by that deficiency.State v. Davenport, 2013 WL 1200241, *1-2 (Franklin Co. App. March 26, 2013). On March 26, 2013, the appellate court denied Petitioner's Rule 26(B) application. Id. On July 24, 2013, the Ohio Supreme Court dismissed the appeal. State v. Davenport, 136 Ohio St.3d 1452 (July 24, 2013).
(8) If the court of appeals determines that an evidentiary hearing is necessary, the evidentiary hearing may be conducted by the court or referred to a magistrate.
(9) If the court finds that the performance of appellate counsel was deficient and the applicant was prejudiced by that deficiency, the court shall vacate its prior judgment and enter the appropriate judgment. If the court does not so find, the court shall issue an order confirming its prior judgment.
Davenport's new appellate counsel lists four issues which he asserts should have been raised by prior appellate counsel:
APPELLANT WAS DENIED HIS RIGHT TO A FAIR AND IMPARTIAL COURT WHEN HE WAS DENIED ACCESS TO THE SEARCH WARRANT FOR HIS CELLULAR PHONE, AS WELL AS HIS CELLULAR PHONE WHICH HELD EXCULPATORY INFORMATION, AND WHEN HE HAD HIS BOND REVOKED WITHOUT CAUSE AND WAS JAILED FOR REQUESTING APPOINTED COUNSEL.
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO FILE A MOTION TO SUPPRESS THE UNLAWFUL SEARCH OF THE CELLULAR PHONE.
APPELLANT WAS DENIED DUE PROCESS GUARANTEED BY THE FIFTH AMENDMENT TO THE FEDERAL CONSTITUTION AND MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT WHEN THE TRIAL COURT REFUSED TO ALLOW APPELLANT TO INTRODUCE PHONE RECORDS DETAILING CALLS BETWEEN HE AND THE PROSECUTING WITNESS' MOTHER AND WHEN THE COURT REFUSED TO ALLOW APPELLANT TO INTRODUCE A VIDEO OF APPELLANT AND THE DETECTIVE IN THIS CASE DISCUSSING THE EXCULPATORY EVIDENCE CONTAINED ON THE CELL PHONE.
THE TRIAL COURT COMMITTED PLAIN ERROR AND VIOLATED APPELLANT'S RIGHT TO DUE PROCESS BY APPOINTING HIS RETAINED ATTORNEY WITHOUT HIS KNOWLEDGE OR PERMISSION.
On March 11, 2014, Petitioner filed his petition for a writ of habeas corpus. He asserts the following claims, repeated here verbatim:
Claim One: Denial of the right to counsel after the depletion of finances and termination of retained counsel (which was subsequently suspended by the Ohio Supreme Ct.) I ask[ed] the court for appointment of counsel. This request denied, my bond revoked and I was put in jail.Respondent asserts that Petitioner has procedurally defaulted his claims or that they fail to warrant relief.
Claim Two: Denied access to exculpatory evidence, and property which contained evidence (cell phone) which was taken/searched without search warrant, and destroyed. Denial right to evidence - phone records.
Claim Three: Appointment of counsel 1 year after request - 20 days before trial - without my being present - done without my knowledge - not recorded, all which are mandated by law and court rules. False and forged documents.
Claim Four: Falsify a document - forge names - signatures use document to fraudulently defraud Public defender funds. Violation of Criminal Rules 52-22-43-44.
II. Motion for Stay and Amendment
Petitioner has filed a Motion to Stay and Amend the Petition (Doc. 7) requesting a stay of proceedings to exhaust his claims. He requests to amend the Petition to include eight additional claims, as follows:
Claim Five: Petitioner received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution when counsel failed to vigorously cross-
examine Terra Wallace for her motives in accusing the appellant of wrongdoing.
Claim Six: The appellant's/Petitioner['s] right to due process of law as guaranteed by the Fifth And Fourteenth Amendments to the United States Constitution was violated when the police destroyed exculpatory evidence.
Claim Seven: The trial court erred in failing to grant the appellant's motion for judgment of acquittal based upon insufficient evidence to convict.
Claim Eight: The Petitioner's rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution were violated when testimony was admitted regarding the alleged criminal acts herein committed against Tierra Wells from a witness other than Wells, despite the fact that Wells testified.
Claim Nine: Petitioner, Davenport was denied his right to fair and impartial court when he was denied access to the search warrant for his cellular phone, as well as his cellular phone which held exculpatory information, and when he had his bond revoked without cause and was jailed for requesting appointed counsel.
Claim Ten: Appellant was denied effective assistance of counsel for failing to file a motion to suppress the unlawful search of the cellular phone.
Claim Eleven: Appellant/Petitioner, was denied due process guaranteed by the Fifth Amendment to the Federal Constitution and made applicable to the States by the Fourteenth Amendment when the trial court refused to allow Petitioner to introduce phone records detailing calls between he and the prosecuting witness' mother and when the court refused to allow Petitioner to introduce a video of Petitioner and the detective in this case discussing the exculpatory evidence contained on the cell phone.
Claim Twelve: The trial court committed plain error and violated Petitioner's right to due process by appointing his retained attorney without his knowledge or permission.
Respondent opposes Petitioner's request to amend, arguing prejudice to the Respondent, undue delay and bad faith on the part of the Petitioner. Response in Opposition, (Doc. 8). Respondent argues amendment of the Petition is not appropriate because Petitioner's proposed claims are procedurally defaulted and lack merit.
In response, Petitioner asserts that "fraudulent concealment and other illegal acts" prevented him from raising these claims earlier. He indicates that the new claims raised in his motion to amend are based on the discovery of new and illegal evidence reflecting malfeasance by agents of the State. Reply, (Doc. 9). He argues that his claims warrant relief and has attached documents in support.
Rule 15 of the Rules of Civil Procedure governs amendments to a habeas corpus petition. See 28 U.S.C. §2242 (an application for a writ of habeas corpus may be amended or supplemented as provided in the rules of procedure applicable to civil actions). Rule 15(a) (2) provides that the court should freely give leave to amend "when justice so requires." An amendment to the Petition may be made with the leave of court at any time during a proceeding. See Mayle v. Felix, 545 U.S. 644, 654-55 (2005). Factors to be considered in determining whether to grant a request to amend include undue delay in filing the request, bad faith, lack of notice to the opposing party, and futility of the amendment. Bowling v. London Correctional Inst., 2013 WL 3278879, *2 (S.D. Ohio June 27, 2013)(citing Cole v. Bell, 161 F.3d 320, 341 (6th Cir. 1998)(internal citation omitted); Oleson v. United States, 27 Fed.Appx. 566, 569 (6th Cir. Dec. 14, 2001)).
Although Petitioner refers to a pending petition for post conviction relief, the record fails to indicate that he has any motion now pending in the state courts. On September 24, 2012, through counsel, Petitioner filed a motion for extension of time to file a post conviction petition, seeExhibit 28 to Return of Writ (Doc. 6), but the record does not reflect that Petitioner pursued such relief. Further, no additional state court procedure remains available to Petitioner. Petitioner's request for a stay therefore is DENIED.
Petitioner's request to amend the Petition, however, is GRANTED. The record does not showthat Petitioner is acting in bad faith or attempting to delay these proceedings. Further, Respondent has already responded to Petitioner's proposed claims, identifying them as waived, duplicitous, or lacking in merit. Under these circumstances, amendment of the Petition will neither delay the proceedings nor cause unnecessary prejudice to the Respondent.
Petitioner's Motion to Stay and Amend (Doc. 7) is therefore GRANTED in part, and DENIED in part.
III. Procedural Default
Congress has provided that state prisoners who are in custody in violation of the Constitution or laws or treaties of the United States may apply to the federal courts for a writ of habeas corpus. 28 U.S.C. §2254(a). In recognition of the equal obligation of the state courts to protect the constitutional rights of criminal defendants, and in order to prevent needless friction between the state and federal courts, a state criminal defendant with federal constitutional claims is required to present those claims to the state courts for consideration. 28 U.S.C. §2254(b), (c). If he fails to do so, but still has an avenue open to him by which he may present his claims, then his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982 (per curiam)(citing Picard v. Connor, 404 U.S. 270, 275-78 (1971)). Where a petitioner has failed to exhaust his claims but would find those claims barred if later presented to the state courts, "there is a procedural default for purposes of federal habeas...." Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).
The term "procedural default" has come to describe the situation where a person convicted of a crime in a state court fails (for whatever reason) to present a particular claim to the highest court of the State so that the State has a fair chance to correct any errors made in the course of the trial or the appeal before a federal court intervenes in the state criminal process. This "requires the petitioner to present 'the same claim under the same theory' to the state courts before raising it on federal habeas review." Hicks v. Straub, 377 F.3d 538, 552-53 (6th Cir. 2004)(quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)). One of the aspects of "fairly presenting" a claim to the state courts is that a habeas petitioner must do so in a way that gives the state courts a fair opportunity to rule on the federal law claims being asserted. That means that if the claims are not presented to the state courts in the way in which state law requires, and the state courts therefore do not decide the claims on their merits, neither may a federal court do so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 87 (1977), "contentions of federal law which were not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure" also cannot be resolved on their merits in a federal habeas case-that is, they are "procedurally defaulted."
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is waived by the petitioner's failure to observe a state procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). "First, the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule." Id. Second, the Court must determine whether the state courts actually enforced the state procedural sanction. Id. Third, it must be decided whether the state procedural forfeiture is an adequate and independent state ground upon which the state can rely to foreclose review of a federal constitutional claim. Id. Finally, if the Court has determined that a state procedural rule was not complied with, and that the rule was an adequate and independent state ground, then the petitioner must demonstrate that there was cause for him not to follow the procedural rule, and that he was actually prejudiced by the alleged constitutional error. Id. This "cause and prejudice" analysis applies to failures to raise or preserve issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir.1985).
Turning to the fourth part of the Maupin analysis, in order to establish cause, petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Constitutionally ineffective counsel may constitute cause to excuse a procedural default. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective assistance of counsel claim generally must " 'be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.' " Edwards, 529 U.S. at 452 (quoting Murray v. Carrier, 477 U.S. 478, 479 (1986)). That is because, before counsel's ineffectiveness will constitute cause, "that ineffectiveness must itself amount to a violation of the Sixth Amendment, and therefore must be both exhausted and not procedurally defaulted." Burroughs v. Makowski, 411 F.3d 665, 668 (6th Cir. 2005). Or, if procedurally defaulted, petitioner must be able to "satisfy the 'cause and prejudice' standard with respect to the ineffective-assistance claim itself." Edwards v. Carpenter, 529 U.S. 446, 450-51, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000). The Supreme Court explained the importance of this requirement:
We recognized the inseparability of the exhaustion rule and the procedural-default doctrine in Coleman: "In the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court. The independent and adequate state ground doctrine ensures that the States' interest in correcting their own mistakes is respected in all federal habeas cases." 501 U.S., at 732, 111 S.Ct. 2546, 115 L.Ed.2d 640. We again considered the interplay between exhaustion and procedural default last Term in O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999), concluding that the latter doctrine was necessary to " 'protect the integrity' of the federal exhaustion rule." Id., at 848, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (quoting id., at 853, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting)). The purposes of the exhaustion requirement, we said, would be utterly defeated if the prisoner were able to obtain federal habeas review simply by " 'letting the time run' " so that state remedies were no longer available. Id., at 848, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1. Those purposes would be no less frustrated were we to allow federal review to a prisoner who had presented his claim to the state court, but in such a manner that the state court could not, consistent with its own procedural rules, have entertained it. In such circumstances, though the prisoner would have "concededly exhausted his state remedies," it could hardly be said that, as comity and federalism require, the State had been given a "fair 'opportunity to pass upon [his claims].' " Id., at 854, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting) (emphasis added) (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)).Edwards, 529 U.S. at 452-53.
If, after considering all four factors of the Maupin test, the court concludes that a procedural default occurred, it must not consider the procedurally defaulted claim on the merits unless "review is needed to prevent a fundamental miscarriage of justice, such as when the petitioner submits new evidence showing that a constitutional violation has probably resulted in a conviction of one who is actually innocent." Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)).
In claim one, Petitioner asserts that he was denied representation because the trial court refused to appoint new counsel after Petitioner had depleted funds with which to pay his retained attorney. In claims three and twelve, Petitioner asserts that the trial court improperly appointed counsel outside of Petitioner's presence. In claim nine, Petitioner asserts he was denied a fair trial due to judicial bias because the trial court denied him access to the search warrant for cell phone records and the contents of his cell phone and revoked bond when Petitioner requested the appointment of new counsel. In claim ten, Petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to file a motion to suppress the contents of his cellular phone. In claim eleven, Petitioner asserts that he was denied a fair trial because the trial court refused to permit admission of evidence regarding his phone calls between Petitioner and the mother of the alleged victim or a videotape of his conversation with a detective.
Petitioner failed to raise any of these claims on direct appeal. Ohio law provides that an issue not raised on direct appeal is barred by the doctrine of res judicata. That has been the law in Ohio for some time. See State v. Cole, 2 Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry, 10 Ohio St.2d 175 (1967). The state courts could not enforce this procedural default based on the nature of the procedural default. This Court has consistently determined that Ohio's res judicata rules serve important state interests in the finality of criminal convictions. See, e.g. Wiley v. Banks, 2013 WL 1663962 (S.D.Ohio Apr.17, 2013), adopted and affirmed 2013 WL 3350668 (S.D.Ohio July 3, 2013).
Petitioner may still obtain a merits review of his claims, if he establishes cause for his procedural default as well as actual prejudice from the alleged constitutional violations. Petitioner asserted in his application to reopen the appeal pursuant to Ohio Appellate Rule 26(B), that he had been denied the effective assistance of counsel based on his attorney's failure to raise on appeal the following claims:
APPELLANT WAS DENIED HIS RIGHT TO A FAIR AND IMPARTIAL COURT WHEN HE WAS DENIED ACCESS TO THE SEARCH WARRANT FOR HIS CELLULAR PHONE, AS WELL AS HIS CELLULAR PHONE WHICH HELD EXCULPATORY INFORMATION, AND WHEN HE HAD HIS BOND REVOKED WITHOUT CAUSE AND WAS JAILED FOR REQUESTING APPOINTED COUNSEL.
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL FOR FAILING TO FILE A MOTION TO SUPPRESS THE UNLAWFUL SEARCH OF THE CELLULAR PHONE.
APPELLANT WAS DENIED DUE PROCESS GUARANTEED BY THE FIFTH AMENDMENT TO THE FEDERAL CONSTITUTION AND MADE APPLICABLE TO THE STATES BY THE FOURTEENTH AMENDMENT WHEN THE TRIAL COURT REFUSED TO ALLOW APPELLANT TO INTRODUCE PHONE RECORDS DETAILING CALLS BETWEEN HE AND THE PROSECUTING WITNESS' MOTHER AND WHEN THE COURT REFUSED TO ALLOW APPELLANT TO INTRODUCE A VIDEO OF APPELLANT AND THE
DETECTIVE IN THIS CASE DISCUSSING THE EXCULPATORY EVIDENCE CONTAINED ON THE CELL PHONE.State v. Davenport, 2013 WL 1200241, at *2. This Court therefore will review the merits of these claims in order to determine whether Petitioner can establish cause and prejudice for his procedural default of claims nine through twelve.
THE TRIAL COURT COMMITTED PLAIN ERROR AND VIOLATED APPELLANT'S RIGHT TO DUE PROCESS BY APPOINTING HIS RETAINED ATTORNEY WITHOUT HIS KNOWLEDGE OR PERMISSION.
The Strickland test applies to appellate counsel. Burger v. Kemp, 483 U.S. 776, 781-82 (1987). Counsel must provide reasonable professional judgment in presenting the appeal. Evitts v. Lucey, 469 U.S. 387, 396-97 (1985)." " '[W]innowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986)(quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). In determining whether appellate counsel performed in a constitutionally ineffective manner, the Court considers whether the omitted issues were "significant and obvious" and clearly stronger than those raised; whether they were objected to at trial; whether the trial court's rulings would be subject to a deferential standard of review; whether there existed arguably contrary authority on omitted issues; whether appellate counsel testified in a collateral proceeding as to justifiable grounds for his appellate strategy; appellate counsel's level of experience and expertise; whether the petitioner and appellate counsel reviewed potential issues for appeal, and whether counsel reviewed all of the facts; whether the omitted issues were dealt with in other assignments of error; and whether only an incompetent attorney would have omitted the issue on appeal. This list is not exhaustive, and merely includes factors to be considered by the court. Mapes v. Coyle, 171 F.3d 408, 427-28 (6th Cir. 1999).
The state appellate court reasoned as follows in rejecting Petitioner's claim of the denial of the effective assistance of appellate counsel:
The fourth issue attacks the trial court's appointing of the attorney who Davenport hired to represent him to continue representing him. Davenport stopped paying the attorney which caused their relationship to deteriorate. The trial court judge, rather than get a new attorney involved and delay the trial while the new attorney investigated the case, appointed the originally retained attorney while expressing doubts that Davenport was indigent even though a $250,000 bond had been posted. This all occurred over one year before the trial commenced. In fact, a new defense attorney did become involved and the new attorney tried the case. The trial court judge's actions in trying to avoid further delays in the case going to trial did not prejudice Davenport in any way. Former appellate counsel had no basis for asserting this issue as prejudicial error and clearly was not rendering ineffective assistance of counsel when he failed to assert it.
The issue at trial was whether Davenport sexually abused a young child, not whether Davenport continued to talk to the child's mother on a cell phone after the child began claiming that Davenport had sexually abused the child. The child testified at the trial. Davenport testified at the trial and categorically denied sexually abusing the child. The jury clearly did not believe that Davenport's testimony raised a reasonable doubt about the accuracy of the child's testimony and claims of sexual abuse.
Nothing in the record on appeal suggests that the child had any access to the cell phone or any involvement with the cell phone's contents. Whether the search of the cell phone was proper was irrelevant to the central issue in the case. The
argument about the cell phone and its contents shows all the signs of being the proverbial red herring. Appellate counsel did not have to pursue those issues.State v. Davenport, 2013 WL 1200241, at *2-3. These factual findings are presumed to be correct, and Petitioner has not provided clear and convincing evidence to rebut this presumption of correctness. The record fails to demonstrate, for the reasons detailed by the Ohio Court of Appeals, that Petitioner's claim of ineffective assistance of counsel meets the two-prong Strickland test. The record also fails to indicate that any of the claims Petitioner raises as a basis for his claim of ineffective assistance of appellate counsel were potentially meritorious. Petitioner therefore has failed to establish cause and prejudice for his procedural defaults.
The cell phone issue, despite its irrelevance, was addressed in the trial court. Further, Davenport and his counsel had the opportunity to develop cell phone records about calls to Davenport's cell phone. The fact that the child's mother continued to communicate with Davenport did not mean the child was lying about the sexual abuse.
Further, the record before us does not show that police unlawfully searched the cell phone. Davenport claimed to police that he had cleared the phone of most or all of its contents, so there was apparently nothing to search for or seize. Again, the cell phone issues could not have created prejudicial error so prior counsel did not fail his duties to Davenport by failing to assert the issues via assignment of error.
Beyond the four-part Maupin analysis, this court is required to consider whether this is "an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley, 505 U.S. 333 (1992). "It is important to note in this regard that 'actual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623.
The United States Supreme Court has held that if a habeas petitioner "presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims." Schlup, 513 U.S. at 316, 115 S.Ct. 851, 130 L.Ed.2d 808. Thus, the threshold inquiry is whether "new facts raise[ ] sufficient doubt about [the petitioner's] guilt to undermine confidence in the result of the trial." Id. at 317, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. To establish actual innocence, "a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id. at 327, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. The Court has noted that "actual innocence means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial." Schlup, 513 U.S. at 324, 115 S.Ct. 851, 130 L.Ed.2d 808. The Court counseled however, that the actual innocence exception should "remain rare" and "only be applied in the 'extraordinary case.' " Id. at 321, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808.Souter v. Jones, 395 F.3d 577, 589-90 (6th Cir. 2005).
The record fails to reflect that Petitioner is the victim of a manifest miscarriage of justice. Petitioner presents no new evidence not previously available indicating that this case is of the "extraordinary nature" justifying a merits review of his otherwise procedurally defaulted claims. Souter v. Jones, 395 F.3d 577, 590 (6th Cir. 2005) (citing Schlup v. Delo, 513 U.S. 298, 316 (1995)). An independent or free-standing claim of actual innocence does not provide a basis for relief. Herrera v. Collins, 506 U.S. 390, 401 (1993) ("Few rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence"); see also House v. Bell, 547 U.S. 518, 554-55 (2006) (declining to resolve the issue).
IV. Merits
A. Standard of Review
The factual findings of the state appellate court are presumed to be correct:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.28 U.S.C. §2254(e)(1). A federal habeas court may not grant relief unless the state court's decision contravened or unreasonably applied clearly established federal law, or based its decision on an unreasonable determination of the facts in light of the evidence presented:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
28 U.S.C. §2254(d). In order to obtain habeas corpus relief, a petitioner must show that the state court's decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Bobby v. Dixon, -- U.S. -- , 132 S.Ct. 26, 2011 WL 5299458, at *1 (Nov. 7, 2011) (quoting Harrington v. Richter, 562 U.S.-- --, 131 S.Ct. 770, 786-87 (2011)). This bar is "difficult to meet" because "habeas corpus is a 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington, 131 S.Ct. at 786 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment)). In short, "[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." Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
B. Claim Four
In claim four, Petitioner asserts as follows, repeated here verbatim:
Falsify a document - forge names - signatures use document to fraudulently defraud "public defender funds. -Violation of Criminal Rules 52-22-43-44.
Even liberally construing the Petition, as this Court is required to do, Haines v. Kerner, 404 U.S. 519 (1972), the Court is unable to discern the nature of this claim. It is not the Court's function to scour the record or craft arguments on Petitioner's behalf, see Wright v. Moore, 2014 WL 2876431, *3 (S.D. Ohio June 24, 2014)(citing Nash v. Comm. Of Social Security, 2013 WL 4736736, *3 (N.D. Ohio Sept.13, 2013); Johnson-Bey v. Brentwall LLC, 2007 WL 2021861, *2 (W.D. Mich. July 6, 2007)), and this Court will not do so here.
Claim four is without merit.
C. Claim Five
In claim five, Petitioner asserts that he was denied the effective assistance of counsel because his attorney failed properly to cross examine the mother of the alleged victim about her motive for making false accusations against him.
The Constitution guarantees a criminal defendant the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on a complaint of ineffective assistance of counsel, a defendant must meet the two-pronged Strickland test:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Id. at 687. The Supreme Court emphasized that "[j]udicial scrutiny of counsel's performance must be highly deferential." Id. at 689. Put plainly, "[a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Id. Moreover, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Strickland, 466 U.S. at 692. Rather, a defendant must demonstrate prejudice to prevail on a claim of ineffective assistance of counsel. Id. at 693. To do so, a defendant must establish that a reasonable probability exists that, but for counsel's errors, the result of the proceedings would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Because a defendant must satisfy both prongs of the Strickland test to demonstrate ineffective assistance of counsel, should the court determine that she has failed to satisfy one prong, it need not consider the other. Id. at 697.
The state appellate court denied Petitioner's claim of the denial of effective assistance of counsel as follows:
The first assignment of error argues that defense counsel did not adequately explore the theory of the rape as a malicious hoax perpetrated by the mother. The mother's hostility toward Davenport was obvious, but could easily be explained by the mother feeling Davenport had raped her child. An argument that the mother wanted Davenport back in her home had no prospect of convincing a jury that Davenport had not raped the child, especially given the medical evidence.State v. Davenport, 2012 WL 5462764, at *2.
Trial counsel for Davenport basically had to try an un-winnable case, given the medical evidence and the child's testimony. Counsel clearly did not provide ineffective assistance of counsel for purposes of the Sixth Amendment to the United States Constitution, given the requirement of Strickland v. Washington, 466 U.S. 668, 686 (1984), that a different outcome of the case be reasonably foreseeable.
This Court is not convinced that the state appellate court contravened or unreasonably applied clearly established federal law or based its decision on an unreasonable determination of the facts in light of the evidence presented in concluding that Petitioner could not establish prejudice, as that term is defined under Strickland.
Claim five is without merit.
D. Claims Two and Six
In claims two and six, Petitioner asserts that the prosecutor violated Brady v. United States, 373 U.S. 83 (1963), by destroying or failing to turn over allegedly exculpatory evidence that was contained on his cell phone.
In Brady v. Maryland, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 86. Evidence is material "[i]f there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). "There is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Strickler v. Greene, 527 U.S. 263, 281 (1999). "Impeachment evidence, as well as exculpatory evidence, falls within the Brady rule." O'Guinn v. Dutton, 88 F.3d 1409, 1418 (6th Cir. 1996) (citing United States v. Bagley). "In the absence of prejudice, even assuming a violation of Brady, reversal is not required." United States v. Jones, 766 F.2d 994, 998 n. 1 (6th Cir. 1985) (citing United States v. Campagnuolo, 592 F.2d 852, 861 & n. 9 (5th Cir.1 979)). "Brady generally does not apply to the delayed disclosure of exculpatory information, only to a complete failure by the prosecutor to disclose such information." Carter v. Harry, No. 07-12211-BC, 2010 WL 2772349, at *5 (E.D. Mich. July 13, 2010) (citing United States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002)). Where evidence is disclosed prior to or during trial, no Brady violation occurs unless the defendant is prejudiced by the timing of the disclosure. Id. (citing United States v. Word, 806 F.2d 658, 665 (6th Cir. 1986)). "The Brady rule does not assist a defendant who is aware of essential facts that would allow him or her to take advantage of exculpatory evidence." Burns v. Lafler, 328 F.Supp.2d 711, 725 (E.D. Mich. 2004)(citing Coleman v. Mitchell, 268 F.3d 417, 438 (6th Cir. 2001)). "It is well established that '[t]here is no Brady violation where a defendant knew or should have known the essential facts permitting him to take advantage of any exculpatory information, or where the evidence is available ... from another source, because in such cases there is really nothing for the government to disclose.'" McClean v. Romanowski, 2014 WL 3870830, *14 (E.D. Mich. Aug. 17, 2014)(quoting Coe v. Bell, 161 F.3d 320, 344 (6th Cir. 1998); Spirko v. Mitchell, 368 F.3d 603, 610 (6th Cir. 2004)).
The state court denied the claim as follows:
The second assignment of error attempts to argue that information in Davenport's cell phone would have supported the theory that the charges were a hoax perpetrated by the child's mother. The contents of the cell phone were not presented in evidence at the trial. Such information was presumably available through a subpoena of the provider's records regarding the cell phone. Further, Davenport claimed to have taped evidence of conversations he had with TW. Finally, he claimed he possessed the
memory card from the cell phone. None of the data and information Davenport claimed to possess was presented or proffered at the trial.State v. Davenport, 2012 WL 5462754, at *2.
Given Davenport's claims that he had the memory card from the cell phone, there is no basis for his now arguing that police removed information from the cell phone. Police could not remove what Davenport claimed to possess. Further, voicemails and related information are retained by the service provider, in this case T-Mobile. Police did not make any pertinent evidence unavailable.
Since there was no police misconduct, especially destroying evidence, Davenport was not deprived of Due Process of Law.
These factual findings are presumptively correct, and Petitioner has not presented any evidence to contradict them. Given these facts, the record shows that Petitioner was aware of and had available to him the contents of the evidence sought. That is fatal to any Brady claim. Further, evidence of threats made by the mother of the alleged victim against him would not have constituted material prejudicial evidence as those terms are defined under Brady. As the Court noted, the jury was made aware of the mother's hostility toward Petitioner. Any additional evidence of that fact would have been cumulative. Petitioner has not shown that the state court's application of Brady to these facts was in any way unreasonable.
Claims two and six are without merit.
E. Claim Seven
In claim seven, Petitioner asserts that the evidence is constitutionally insufficient to sustain his convictions and the trial court improperly denied his motion for judgment of acquittal under Rule 29 of the Ohio Rules of Criminal Procedure.
A claim regarding the alleged violation of state law or procedure fails to present an issue appropriate for federal habeas corpus review. See 28 U.S.C.§ 2254(a). A federal court may not issue a writ of habeas corpus "on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41 (1984) (Smith v. Sawders, 848 F.2d 735, 738 (6th Cir. 1988). A federal habeas court does not function as an additional state appellate court reviewing state courts' decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988). " '[F]ederal courts must defer to a state court's interpretation of its own rules of evidence and procedure' " in considering a habeas petition. Id. (quoting Machin v. Wainwright, 758 F.2d 1431, 1433 (11th Cir. 1985)).
Petitioner claims that the evidence is constitutionally insufficient to sustain his convictions. Before a criminal defendant can be convicted consistent with the United States Constitution, there must be evidence sufficient to justify a reasonable trier of fact to find guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). To determine whether the evidence was sufficient to support a conviction, this Court must view the evidence in the light most favorable to the prosecution. Wright v. West, 505 U.S. 277, 296 (1992) (citing Jackson, at 319). The prosecution is not affirmatively required to "rule out every hypothesis except that of guilt." Id. (quoting Jackson, at 326). "[A] reviewing court 'faced with a record that supports conflicting inferences must presume—even if it does not appear on the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.' " Id. (quoting Jackson, at 326).
Federal habeas courts must afford a "double layer" of deference to state court determinations about the sufficiency of the evidence to sustain a conviction. As explained in Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009), deference is due the jury's finding of guilt because the standard, announced in Jackson v. Virginia, is whether "viewing the trial testimony and exhibits in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Even if a de novo review of the evidence leads to the conclusion that no rational trier of fact could have so found, a federal habeas court "must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable." See also White v. Steele, 602 F.3d 707, 710 (6th Cir. 2009). This is a substantial hurdle for a habeas corpus petitioner to overcome, and the Court is not persuaded that Petitioner has done so here.
Petitioner was charged with kidnapping, in violation of O.R.C. §2905.01, in Count One of the Indictment, and rape of a child under the age of thirteen, in violation of O.R.C. §2907.02, in Counts Two and Three.
O.R. C. §2905.01 provides in relevant part as follows:
(A) No person, by force, threat, or deception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes:
O.R.C. §2907.02 provides in relevant part:(4) To engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the victim against the victim's will[.]
(A)(1) No person shall engage in sexual conduct with another who is not the spouse of the offender or who is the spouse of the offender but is living separate and apart from the offender, when any of the following applies:
(b) The other person is less than thirteen years of age, whether or not the offender knows the age of the other person.
This was the evidence presented to support the charges. T.W., who was ten years old at the time of the charges at issue, testified that she met the Petitioner when he was dating her mother. He slept at her house. He raped her in the living room and kitchen, and woke her up for sexual acts when she was sleeping. He compelled her to submit by force. He made her get on the floor, and pulled down her pants and underwear to touch her "private parts." Trial Transcript, Doc. 6-5, PageID#523-535. She was afraid to tell anyone. PageID# 537. He hurt her and made her bleed. PageID# 538-540. Gail Horner, who worked at Children's Hospital, examined T.W. T.W. told Kerri Wilkinson that Petitioner forced her to engage in anal and vaginal sex and touched her breasts under her clothes. PageID# 215-16. Horner testified that a "remnant" remained of T.W.'s hymen, supporting the claimed sexual abuse. PageID# 217.
Construing this evidence in the light most favorable to the prosecution, this evidence alone was constitutionally sufficient to establish that Petitioner committed two acts of rape against a child under the age of thirteen and restrained her liberty in order to do so, as charged. It was up to the jury to decide whether to believe the victim. Its decision to do so was one a reasonable jury could have made. The state court was therefore justified, under Jackson, in denying Petitioner relief on this claim, and its decision to do so was not a misapplication of federal law.
Claim seven is without merit.
F. Claim Eight
In claim eight, Petitioner asserts that he was convicted in violation of the Confrontation Clause. The state appellate court stated as follows in denying this claim:
The allegations that Davenport's trial somehow involved deprivation of the right to confront witnesses has no merit. TW and TJW both testified in open court. The medical person who examined TW's child testified about her findings. The licensed social worker who interviewed the child to obtain a medical history in preparation for the physical examination testified. Since the child testified in open court, no confrontation issues are presented with regard to her testimony and her prior statements.State v. Davenport, 2012 WL 5462764, at *1. Petitioner does not provide any basis for this claim, aside from indicating that witnesses aside from the alleged victim provided evidence regarding the charges against him. As noted by the state appellate court, that fact does not constitute a violation of the Confrontation Clause. See United States v. Kappell, 418 F.3d 550, 554 (6th Cir. 2005)(where "[t]here was no introduction into evidence of recorded out-of-court statements made by persons who did not testify" there was no Confrontation Clause violation). That is the case here.
Claim eight is without merit.
V. Recommended Disposition
For all of the foregoing reasons, Petitioner's Motion to Stay and Amend (Doc. 7) is GRANTED in part, and DENIED in part. Further, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
VI. Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen 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, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
/s/ Terence P. Kemp
United States Magistrate Judge