Opinion
3:23-CV-939
09-30-2024
THOMAS D. WHITE, SR, Petitioner, v. ANGELA STUFF, Warden, Respondent.
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF NO. 12]
Benita Y. Pearson United States District Judge
Before the Court is Petitioner Thomas D. White, Sr.'s Objection to Order or Recommended Disposition of the Magistrate Judge's Report & Recommendation. ECF No. 12. Respondent filed a Response in Opposition. ECF No. 13. Petitioner replied. ECF No. 14. For the following reasons, Petitioner's objection is overruled, the Report and Recommendation (ECF No. 11) is adopted, and the habeas relief (ECF No. 1) is denied.
I. Background
Having been convicted in the Lucas County Court of Common Pleas and sentenced to 36 years of incarceration for various violent and sexual offenses, Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In Petitioner's first indictment, filed in February 2003 (CR-03-1332), Petitioner was charged with aggravated robbery, felonious assault, and kidnapping. ECF No. 9-1 at PageID #: 163-65. After a bench trial, Petitioner was convicted of felonious assault, kidnapping, and robbery. ECF No. 9-1 at PageID #: 179. On July 11, 2003, Petitioner received an aggregate sentence of 15 years. ECF No. 9-1 at PageID #: 182.
In the second indictment, filed in August 2003 (CR-03-2820), the Grand Jury charged Petitioner with two counts of rape with three-year firearm specifications and two counts of kidnapping with firearm specifications. ECF No. 9-1 at PageID #: 69-72. Petitioner pled no contest to the two counts of rape, and the court dismissed all other charges. ECF No. 9-1 at PageID #: 122-23. The court sentenced Petitioner to serve two seven-year prison terms to be served consecutively to each other and to sentences imposed in CR 2004-1044 and CR 20031332. ECF No. 9-1 at PageID #: 127-28.
In the third indictment, filed on January 12, 2004 (CR-04-1044), the Grand Jury charged Petitioner with rape and kidnapping with a sexual motivation specification from conduct originating in 1998. ECF No. 9-1 at PageID #: 76-78. Petitioner pled no contest to Count One of the indictment, rape, and the court dismissed Count Two, kidnapping. ECF No. 9-1 at PageID #: 131. Petitioner received a sentence of seven years. ECF No. 9-1 at PageID #: 131.
With respect to CR-03-2820 and CR-04-1044 (the second and third indictments), White filed the respective notices of appeal on June 25, 2004. ECF No. 9-1 at PageID #: 271, 278. But, before making its determination, the Ohio Court of Appeals consolidated the appeals. ECF No. 9-1 at PageID #: 134. Afterwards, the Ohio Court of Appeals sustained White's assignment of error on January 20, 2006, vacated his sentences, and remanded the matters for resentencing. ECF No. 9-1 at PageID #: 149-55. In that February 10, 2006, resentencing, the trial court used the same prison terms and sentence from the original judgments. On remand for both cases, and to comply with Ohio Rev. Code § 2929.14, the trial court found
consecutive sentences necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public....the offender's history of criminal product demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender to be served.ECF No. 9-1 at PageID #: 157-58; 160-61. Notably, White did not request the Ohio Supreme Court to review any of the Ohio Court of Appeals' decisions.
In March 2004, Petitioner appealed his sentence from CR-03-1332 to the Ohio Court of Appeals, setting forth one assignment of error. ECF No. 9-1 at PageID #: 193; 198. Petitioner contended:
I. The trial court erred when it ordered the defendant-appellant to pay unspecified court costs, fees, and to make an unspecified, unsubstantiated sum of restitution.ECF No. 9-1 at PageID #: 193. The State opposed Petitioner's claim. ECF No. 9-1 at PageID #: 140. In October 2004, the Ohio Court of Appeals, Sixth Appellate District, overruled the assignment of error. ECF No. 9-1 at PageID #: 213.
On May 8, 2023, Petitioner filed the instant habeas petition (ECF No. 1) in which he raises the following two grounds:
Ground One: The Appeals Court denied Appellant of his right to [Appeal] counsel pursuant to the Sixth & Fourteenth Amendments.
Ground Two: Under Section 10, Article 1 to the Ohio Constitution denied the effective Assistance of Appellant Counsel, violation of 6th - 14th Amends.ECF No. 1 at PageID #: 5, 9. The habeas petition at bar was referred to a magistrate judge for preparation of a report and recommendation, pursuant to 28 U.S.C. § 636 and Local Rule 72.2(b)(2).
In January 2024, the magistrate judge issued a Report and Recommendation. ECF No. 11. In that Report and Recommendation, the magistrate judge recommends that the Court deny the habeas petition because the statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) bars the petition. The magistrate judge determined that Petitioner's last day to file the petition was March 13, 2007. The magistrate judge, therefore, reasoned that instant Petition is “16 years, 9 months, and 27 days late.” ECF No. 11 at PageID #: 730. Additionally, the magistrate judge recommended that equitable tolling or actual innocence does not save Petitioner's untimely petition. ECF No. 11 at PageID #: 730-33.
There appears to be a scrivener's error in the calculation of the late habeas petition. The R&R records that Petitioner filed the petition on April 18, 2023. But the petition was filed on May 8, 2023, which makes the petition 16 years, 1 month, and 25 days late. See ECF No. 1; see also ECF No. 11 at PageID #: 730. This makes no difference to the Court's analysis.
Furthermore, even if the statute of limitations would not bar the petition, the magistrate judge recommends denial because Petitioner procedurally defaulted on his claims. ECF No. 11 at PageID #: 733. Petitioner did not raise any federal claims on initial direct appeal, and he “never presented any claim to the Ohio Supreme Court, either as part of the direct review process in 2006, when he had the chance to do so then; or after the denial of his Rule 26 application by the Ohio Court of Appeals in 2022[.]” ECF No. 11 at PageID #: 737.
In response to the magistrate judge's Report and Recommendation, White filed his Objections to Order or Recommended Disposition on February 12, 2024. See ECF No. 12.
Respondent responded that the Court should adopt the magistrate judge's recommendations. ECF No. 13 at PageID #: 748. In agreement with the Report and Recommendation, Respondent urges that Petitioner did not timely appeal, provide enough proof to satisfy an equitable tolling exception, and that Petitioner procedurally defaulted his claims. ECF No. 13 at PageID #: 750-53.
Petitioner rebuffs Respondent's argument and contends that the disregard of his motion to compel was a miscarriage of justice, and that the “failure by the court to notify appointed appellate counsel of his/her appointment ‘qualifies' as a denial of the defendant's right to counsel pursuant to Catlino.” ECF No. 14 at PageID #: 756.
II. Standard of Review
When a petitioner makes an objection to a magistrate judge's Report and Recommendation, the district court's standard of review is de novo. Fed.R.Civ.P. 72(b)(3). A district judge:
must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.Id. Importantly, objections “must be specific in order to trigger the de novo review.” Bulls v. Potter, No. 5:16-CV-02095, 2020 WL 870931, at *1 (N.D. Ohio Feb. 21, 2020) (citing Fed.R.Civ.P. 72(b)(2)). “An ‘objection' that does nothing more than state a disagreement with a magistrate's suggested resolution, or simply summarizes what has been presented before, is not an ‘objection' as that term is used in this context.” Spring v. Harris, No. 4: 18-CV-2920, 2022 WL 854795, at *4 (N.D. Ohio Mar. 23, 2022) (quoting Aldrich v. Bock, 327 F.Supp.2d 743, 747 (N.D. Ohio 2022)). “A party disappointed with the magistrate judge's recommendation has a ‘duty to pinpoint those portions of the magistrate's report that the district court must specially consider.'” Spring, No. 4:18-CV-2920, 2022 WL 854795, at *4. (quoting Enyart v. Coleman, 29 F.Supp.3d 1059, 1068 (N.D. Ohio 2014)). “A general objection to the entirety of [a Report and Recommendation]” or “an exact recitation of arguments previously raised” will fail to “meet the specificity requirement for objections.” Potter, 2020 WL at *1.
Pursuant to 28 U.S.C. § 2254(d), as amended AEDPA, a writ of habeas corpus may not be granted unless the state court proceedings: (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 (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. 28 U.S.C. § 2254(d)(1) - (2); see also Wilson v. Sheldon, 874 F.3d 470, 474-75 (6th Cir. 2017).
A federal court may review a state prisoner's habeas petition only on the grounds that the challenged confinement violates the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). “A federal court may not issue the writ on the basis of a perceived error of state law.” Nguyen v. Warden, N. Cent. Corr. Inst., No. 19-3308, 2019 WL 4944632, at *4 (6th Cir. July 24, 2019) (quoting Pulley v. Harris, 465 U.S. 37, 41 (1984)). Because state courts are the final authority on state-law issues, the federal habeas court must defer to and is bound by the state court's rulings on such matters. See Mason v. Nagy, No. 21-1040, 2021 WL 6502177, at *3 (6th Cir. July 27, 2021) (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)) (stating that “it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions”); see also Cristini v. McKee, 526 F.3d 888, 897 (6th Cir. 2008) (stating that “[a] violation of state law is not cognizable in federal habeas corpus unless such error amounts to a fundamental miscarriage of justice or a violation of the right to due process in violation of the United States Constitution”).
Pro se habeas corpus pleadings are held to less stringent standards than formal pleadings drafted by lawyers and must be liberally construed. See Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001). Nonetheless, Petitioner must prove his allegations by a preponderance of the evidence. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).
III. Discussion
Petitioner does not delineate individual objections, but the Court construes several of his arguments set forth in his Objection to Order or Recommended Disposition (ECF No. 12) as objections.
A. Petitioner's First Objection: Timeliness of his Petition
While the Magistrate Judge found his petition untimely and not salvageable by equitable tolling, Petitioner argues that he “did offer a sufficient explanation for the untimely filing of his habeas petition,” entitling him to equitable tolling. ECF No. 12 at PageID #: 744. Respondent answers that Petitioner “failed to meet his burden to show that he is entitled to equitable tolling.” ECF No. 13 at PageID #: 753.
Petitioner suggets several reasons why he is entitled to equitable relief. He explains he was transferred various times, which resulted in losing legal materials, transcripts, and journal entries. ECF No. 12 at PageID #: 742. He also asserts he was indigent and lacked knowledge of the criminal justice system. ECF No. 12 at PageID #: 743-44. Petitioner raised these same arguments to the magistrate judge, and the magistrate judge found that Petitioner was not entitled to equitable tolling. ECF No. 11 at PageID #: 732.
“It is well settled in the Sixth Circuit that ‘merely express[ing] a general disagreement with the magistrate judge's legal analysis' is not sufficient to preserve objections to a magistrate judge's recommendation.” Tawfiq v. Hines, 2022 WL 17960452 (E.D. Mich. Dec. 27, 2022) (quoting Brown v. City of Grand Rapids, Michigan, No. 16-2433, 2017 WL 4712064 (6th Cir. 2017)). An objection to a Report and Recommendation is “not meant to simply be a vehicle to rehash arguments set forth in the petition, and the Court is under no obligation to review de novo objections that are merely an attempt to have the district court reexamine the same arguments set forth in the petition and briefs.” Dundee v. Univ. Hosps. Corp, 2020 WL 511520, at *1 (N.D. Ohio Jan. 31, 2020); see also Roberts v. Warden, Toledo Corr. Inst., 2010 WL 2794246, at *7 (S.D. Ohio July 14, 2010) (“The Court is under no obligation to review de novo objections that are merely perfunctory or an attempt to have the Court reexamine the same arguments set forth in the original petition.”); Sackall v. Heckler, 104 F.R.D. 401, 402 (D.R.I. 1984) (“These rules serve a clear and sensible purpose: if the magistrate system is to be effective, and if profligate wasting of judicial resources is to be avoided, the district court should be spared the chore of traversing ground already plowed by the magistrate [judge.]”).
Accordingly, because Petitioner's first objection is a mere recitation of his arguments resolved by the Report and Recommendation, it presents no matters for further review.
B. Petitioner's Second Objection: Ineffective Assistance of Appellate Counsel
Petitioner argues the Report and Recommendation (ECF No. 11) misunderstood the argument he set forth in his habeas petition. ECF No. 12 at PageID #: 744. Petitioner claims he was entitled to appellate counsel after his appellate counsel, attorney Carol Damrauer-Vixen, withdrew as counsel. ECF No. 12 at PageID #: 745. Petitioner argues this “qualifies as a denial of the defendant's right to counsel.” ECF No. 12 at PageID #: 745. Respondent does not respond to this contention. See ECF No. 13.
In the Report and Recommendation, the magistrate judge fairly construed Petitioner's arguments while reviewing his Petition (ECF No. 1) and Traverse (ECF No. 10). Through his objections, Petitioner was able to clarify his claim, explaining once his appellate counsel withdrew, the court did not appoint another appellate attorney. ECF No. 12 at PageID #: 745. Petitioner, therefore, argues he was denied his right to counsel. ECF No. 12 at PageID #: 745.
A defendant has a Sixth Amendment right to counsel at trial and on direct “first tier” appeal. Halbert v. Michigan, 545, U.S. 605, 610 (2005). The right to appointed counsel does not extend when pursuing a discretionary appeal on direct review of a conviction. Nichols v. United States, 563 F.3d 240, 248 (2009); Pennsylvania v. Finley, 481 U.S. 551, 551 (1987).
Attached to Petitioner's Traverse is a Motion to Withdraw as Attorney of Record filed by Attorney Carol Damrauer-Viren. ECF No. 10-1 at PageID #: 708. Thomas White, the Petitioner in this matter, is named as the Defendant-Appellant in the Motion. ECF No. 10-1 at PageID #: 708. The Motion was filed October 14, 2004. ECF No. 10-1 at PageID #: 708. Before withdrawing, Attorney Carol Damrauer-Viren filed a notice of appeal in August 2003 and filed an appellate brief for Petitioner in March 2004. ECF No. 9-1 at PageID #: 189-201. A brief was filed by the Plaintiff-Appellee in April 2004, and on October 22, 2004, the Sixth Appellate District entered a decision and judgment entry, confirming the judgment of the Lucas County Court of Common Pleas. ECF No. 9-1 at PageID #: 203-215.
The Court finds that Petitioner had legal counsel on his direct first tier appeal. Counsel filed an appellate brief for him, and only filed her motion to withdraw 8 days before a decision was entered by the Sixth Appellate District. Petitioner had no constitutional right to be appointed counsel in his appeal to the Ohio Supreme Court, a discretionary appeal. Accordingly, the Court finds Petitioner was not denied his right to counsel, overruling his objection.
IV. Conclusion
For the foregoing reasons, the assigned magistrate judge's Report and Recommendation (ECF No. 11) is adopted, Petitioner's objection is overruled, and the underlying Petition for a writ of habeas corpus (ECF No. 1) is denied as time-barred. In the alternative, the Petition is denied because the claims are procedurally defaulted.
In further accord with the Report and Recommendation, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.