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finding that a Blakely violation does not constitute structural error and is subject to harmless error review
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CASE NO. 2:08-CV-391.
June 4, 2009
ORDER and REPORT AND RECOMMENDATION
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 and memorandum in support of the petition, respondent's return of writ, petitioner's traverse and supplemental exhibits, and the exhibits of the parties. Petitioner's unopposed request to add the exhibits attached thereto, see Doc. No. 13, is GRANTED. Petitioner's motion to dismiss claim three from the petition, Doc. No. 15, is GRANTED. For the reasons that follow, the Magistrate Judge RECOMMENDS that petitioner's motion for summary judgment, Doc. No. 11, be DENIED and that this action be DISMISSED.
FACTS and PROCEDURAL HISTORY
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:
On February 9, 2004, the Family Market was robbed and its owner, Andai Gebretensai, was shot and killed. On February 27, 2004, Zane's Gun Rack was robbed and its owner, Zane Wilson, was shot and killed. Evidence from the scene at Zane's Gun Rack led Detective Brian Carney of the Columbus Police Department to suspect that defendant had participated in both crimes.
In the early morning hours of March 1, 2004, Detective Carney and Detective David Harrington interrogated defendant at police headquarters. Before questioning defendant about the crimes, Detective Carney ascertained that defendant could read and write, that he did not have any hearing problems, that he did not wear glasses or contacts, and that he had not ingested any drugs or alcohol that day. Detective Carney then gave defendant a form entitled "Constitutional Rights," and he and defendant engaged in the following exchange:
[Detective Carney]: Okay. Have you ever had your constitutional rights read to you before?
Defendant Curtis: Um-hmm.
[Detective Carney]: Okay. So it's nothing new. See it. Same exact form except I've written on this one. Where it says "before," would you do me a favor and read that out loud?
Defendant Curtis: Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him present with you during questioning. If you are unable to pay for a lawyer, a lawyer will be appointed for you prior to any questioning if you so desire. If you wish to answer questions now without a lawyer present, you have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.
[Detective Carney]: Do you understand all that?
Defendant Curtis: Yeah.
[Detective Carney]: Do you have any questions about that?
Defendant Curtis: Can I get a public defender?
[Detective Carney]: Um-hmm. If you can't afford one, that's what the public defender is for, and they will be appointed for you.
Defendant Curtis: Why do I need a lawyer though. I mean, why am I here?
[Detective Carney]: Go ahead and read this waiver section, and we'll kind of start the interview and tell you everything that's going on.
Defendant Curtis: I have read and been read the statement of my rights as written above. I understand what my rights are. I do not want a lawyer at this time. I am willing to answer questions. I understand and know what I am doing. No promises or threats-or threats have been made to me and no pressure of any kind has been used against me.
[Detective Carney]: Do you understand that section?
Defendant Curtis: (Indicates affirmatively.)
[Detective Carney]: Have any questions about that?
Defendant Curtis: I don't have no questions about that.
[Detective Carney]: Okay. You can sign right here. It states that you read and understand what your constitutional rights are. No admission of guilt or anything like that. It's just stating you understood and read your rights. Got it?
(Tr. at 365-367.)
Defendant signed his name to the waiver portion of the "Constitutional Rights" form, and Detective Carney told defendant that he was at police headquarters because he had been implicated in two crimes. During the interrogation that followed, defendant admitted to participating in the robbery of Zane's Gun Rack, although he denied shooting Wilson. When Detective Carney asked defendant about the Family Market robbery, defendant admitted to both robbing the store and shooting Gebretensai.
On March 10, 2004, the grand jury indicted defendant on the following counts: (1) aggravated murder, in violation of R.C. 2903.01, with death penalty and firearm specifications; (2) aggravated murder, in violation of R.C. 2903.01, with death penalty and firearm specifications; (3) aggravated murder, in violation of R.C. 2903.01, with death penalty and firearm specifications; (4) aggravated robbery, in violation of R.C. 2911.01, with a firearm specification; (5) kidnapping, in violation of R.C. 2905.01, with a firearm specification; (6) aggravated burglary, in violation of R.C. 2911.11, with a firearm specification; (7) aggravated murder, in violation of R.C. 2903.01, with death penalty and firearm specifications; and (8) aggravated robbery, in violation of R.C. 2911.01, with a firearm specification. Defendant pled not guilty to each of the counts.
On October 15 and 20, 2004, defendant moved to suppress the statements he made during the March 1, 2004 interrogation. In support of his motions, defendant argued that the police violated his constitutional right to counsel by questioning him, and thus obtaining the statements at issue, after he had requested a lawyer. The trial court reviewed a videotape of defendant's interrogation and denied defendant's motions to suppress.
As part of its case-in-chief, the state introduced the videotape into evidence and played it for the jury. The state also introduced the "Constitutional Rights" waiver form that defendant signed before Detective Carney began questioning defendant about the two crimes.
After the close of evidence, the jury rendered a verdict as follows: (1) not guilty of aggravated murder, but guilty of the lesser included offense of murder; (2) not guilty of aggravated murder, but guilty of the lesser included offense of murder; (3) not guilty of aggravated murder and the lesser included offense of murder; (4) guilty of aggravated robbery; (5) guilty of kidnapping; (6) not guilty of aggravated burglary; (7) guilty of aggravated murder; and (8) guilty of aggravated robbery. Additionally, the jury found that defendant used a firearm while committing all of his offenses.
Because the jury found defendant guilty of the death penalty specification included in count seven, the trial moved into the death penalty phase. Ultimately, the jury recommended that defendant receive a life sentence without the possibility of parole.
At the June 28, 2005 sentencing hearing, the trial court sentenced defendant to imprisonment for: (1) 15 years to life as to counts one and two, which the trial court merged for sentencing purposes, with an additional three years for the use of a firearm; (2) ten years as to count four, with an additional three years for the use of a firearm; (3) ten years as to count five, with an additional three years for the use of a firearm; (4) life without parole as to count seven, with an additional three years for the use of a firearm; and (5) ten years as to count eight, with an additional three years for the use of a firearm. The trial court ordered that defendant serve each sentence consecutively, except for the three-year terms imposed for the firearm specifications included in counts one and seven. On July 1, 2005, the trial court reduced defendant's conviction and sentences to judgment.State v. Curtis, 2006 WL 2349455 (Ohio App. 10th Dist. August 15, 2006). Petitioner filed a timely appeal in which he asserted the following assignments of error:
[1.] Appellant's confession was taken in violation of his 5th, 6th and 14th Amendment rights to the U.S. Constitution and in violation of his constitutional rights under Article I, Section 10 of the Ohio Constitution.
[2.] The trial court commits reversible error when it makes findings of fact to give a first time offender, non-minimum, maximum, consecutive sentences, when those facts were not proven beyond a reasonable doubt to the jury.See id. On August 15, 2006, the appellate court affirmed the judgment of the trial court. Id. On October 24, 2007, the Ohio Supreme Court denied petitioner's subsequent appeal. Exhibit 14 to Return of Writ.
On November 6, 2006, petitioner filed a pro se application to reopen the appeal pursuant to Ohio Appellate Rule 26(B). He asserted that he had been denied the effective assistance of appellate counsel because his attorney failed to raise on appeal a claim of ineffective assistance of trial counsel due to counsel's failure to challenge the voluntariness of his confession. Exhibit 15 to Return of Writ. On January 30, 2007, the appellate court denied petitioner's Rule 26(B) application. Exhibit 17 to Return of Writ. Petitioner apparently did not file an appeal from that judgment. On May 30, 2007, petitioner filed a pro se "motion to vacate judgment" in the state trial court, alleging that the trial court had erred in refusing to sever the charges against him. Exhibit 20 to Return of Writ. On June 29, 2007, the trial court denied petitioner's motion. Exhibit 23 to Return of Writ. Petitioner apparently did not file an appeal from that decision.
On April 24, 2008, petitioner filed the instant pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the respondent in violation of the Constitution of the United States based upon the following grounds:
1. Appellant's confession was taken in violation of his 5th, 6th, and 14th Amendment rights to the U.S. Constitution. Appellant requested an attorney after reading his Miranda rights and was denied which [illegible] confession.
2. Appellant was not sentence[d] to the minimum which is required for a defendant who has never served a prison term.
3. The trial court committed "plain error" in refusing to sever joined cases and grant defendant separate trial[s] on each.
Petitioner has withdrawn claim three from his petition. See Doc. No. 15. It is the position of the respondent that petitioner's remaining claims are waived or without merit.
MOTION FOR SUMMARY JUDGMENT
On September 10, 2008, petitioner filed objections to the Return of Writ and a request for summary judgment pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure. See Doc. Nos. 11, 13, 14. Respondent opposes petitioner's motion for summary judgment. Doc. No. 12. Petitioner asserts in his objections and request for summary judgment that he was improperly charged with four counts of aggravated murder when only two murders were at issue, that his convictions violate the Double Jeopardy Clause, and that the trial court therefore lacked jurisdiction and his convictions are void.
Rule 60(b)(4) of the Federal Rules of Civil Procedure provides:
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
* * *
(4) the judgment is void[.]
Petitioner's request for summary judgment is not supported by the record nor is such a motion appropriately granted in habeas corpus proceedings. See Alder v. Burt, 240 F.Supp.2d 651, 677 (E.D. Michigan 2003):
[To grant a] motion for summary judgment . . . would be tantamount to granting . . . a default judgment, which is relief that is unavailable in habeas corpus proceedings. Allen v. Perini, 26 Ohio Misc. 149, 424 F.2d 134, 138 (6th Cir. 1970), superseded on other grounds by statute as stated in, Cobb v. Perini, 832 F.2d 342 (6th Cir. 1987); Lemons v. O'Sullivan, 54 F.3d 357, 364-65 (7th Cir. 1995) ("Default judgment is an extreme sanction that is disfavored in habeas corpus cases."); Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990) ("The failure to respond to claims raised in a petition for habeas corpus does not entitle the petitioner to a default judgment."); Aziz v. Leferve, 830 F.2d 184, 187 (11th Cir. 1987) ("a default judgment is not contemplated in habeas corpus cases").Id. Therefore, petitioner's request for summary judgment is without merit.
Liberally construing petitioner's motion, see Martin v. Overton, 391 F.3d 710, 712 (6th cir. 2004), citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972), however, as a request to amend the habeas corpus petition to include additional claims, petitioner's unopposed request to amend the petition in order to assert additional claims is GRANTED.
It is the position of the respondent that petitioner's amended claims are procedurally defaulted and without merit. See Doc. No. 12.
AMENDED CLAIMS: PROCEDURAL DEFAULT
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 fairly present those claims to the highest court of the state 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 the claims, his petition is subject to dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6 (1982) ( per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971). If, because of a procedural default, the petitioner can no longer present his claims to a state court, he has also waived them for purposes of federal habeas review unless he can demonstrate cause for the procedural default and actual prejudice resulting from the alleged constitutional error. Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977).
In the Sixth Circuit, a four-part analysis must be undertaken when the state argues that a federal habeas claim is precluded 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 on 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.
Petitioner's amended claims — i.e., that the indictment improperly asserted four counts of aggravated murder and that his convictions violate the Double Jeopardy Clause — raise issues that are readily apparent from the face of the record and should therefore have been raised on direct appeal. Petitioner did not do so and, further, he may now no longer present these claims to the state courts by virtue of Ohio's doctrine of res judicata. 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 were never given the opportunity to enforce the procedural rule at issue due to the nature of petitioner's procedural default. This Court therefore deems the first and second parts of Maupin to have been met.
This Court must decide whether the procedural rule at issue constitutes an adequate and independent basis upon which to foreclose review of these federal constitutional claims. This task requires the Court to balance the state's interests behind the procedural rule against the federal interest in reviewing federal claims. See Maupin v. Smith, 785 F.2d at 138. Under this analysis, the procedural rule barring petitioner's amended claims constitutes adequate and independent state grounds for denying relief. The state courts must be given a full and fair opportunity to remedy alleged constitutional defects. The requirement that all available claims be presented at the first opportunity and the time limitations for filing appeals serve the state's interests in finality and in ensuring that claims are adjudicated at the earliest possible opportunity. Further, the doctrine of res judicata is stated in unmistakable terms in numerous Ohio decisions and Ohio courts have consistently refused to review claims on the merits under that doctrine. See State v. Cole, supra; State v. Ishmail, supra; State v. Perry, supra.
Petitioner has waived his right to present his amended claims for federal habeas corpus review. He can still secure review of these claims on the merits if he demonstrates cause for his failure to follow the state procedural rules as well as actual prejudice from the constitutional violations that he alleges. Petitioner has failed to establish cause for his procedural default.
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. After review of the record, the Court does not deem this to be such a case.
Petitioner has waived his right to present his amended claims regarding a defective indictment and alleged violation of the Double Jeopardy Clause for federal habeas corpus review.
CLAIM TWO
A. Procedural Default
In claim two, petitioner asserts that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004). Respondent contends that this claim is procedurally defaulted because petitioner failed to raise the issue at sentencing, and the state appellate court therefore refused to address his claim on the merits:
By his second assignment of error, defendant argues that the trial court violated the principles of Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, when it made the statutorily-required factual findings necessary for the imposition of non-minimum, maximum, and consecutive sentences upon defendant. We find this argument unavailing. This court has recently held that "a Blakely challenge is waived by a defendant sentenced after Blakely if it was not raised in the trial court." State v. Draughon, Franklin App. No. 05AP-860, 2006-Ohio-2445, at ¶ 8. See, also, State v. Davis, Franklin App. No. 05AP-538, 2006-Ohio-3707, at ¶ 17-24 (discussing the application of the waiver doctrine to claims that the Ohio sentencing statutes violated the Sixth Amendment when the sentencing occurred after Blakely). Here, defendant was sentenced at a hearing held over a year after the Supreme Court of the United States decided Blakely. Defendant, however, did not raise a Blakely challenge at his sentencing hearing or any other time prior to this appeal. Therefore, we conclude that defendant waived his Blakely challenge, and we overrule defendant's second assignment of error.State v. Curtis, supra, 2006 WL 2349455.
Under Maupin, the procedural rule barring federal habeas corpus review of a petitioner's claim must constitute an adequate and independent state ground upon which to deny relief. To qualify as "independent," the procedural rule at issue, as well as the state court's reliance thereon, must rely in no part on federal law. See Coleman v. Thompson, 501 U.S. 722, 732-33 (1991). To qualify as "adequate," the state procedural rule must, among other things, be firmly established and regularly followed by the state courts. Ford v. Georgia, 498 U.S. 411 (1991). "[O]nly a `firmly established and regularly followed state practice' may be interposed by a State to prevent subsequent review by this Court of a federal constitutional claim." Id. at 423 (quoting James v. Kentucky, 466 U.S. 341, 348-351 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964).
Here, the trial court sentenced petitioner on June 28, 2005, in a judgment entry filed July 1, 2005, long after the United States Supreme Court's June 24, 2004, decision in Blakely. See State v. Curtis, supra; Exhibit 7 to Return of Writ. However, petitioner filed his appellate brief on January 26, 2006, before the Ohio Supreme Court issued its February 27, 2006, decision in State v. Foster, 109 Ohio St.3d 1 (2006), striking as unconstitutional under Blakely those portions of Ohio's sentencing statutes that required judicial fact finding. Exhibit 8 to Return of Writ. While the appellate court refused to consider the merits of petitioner's Blakely claim due to his failure to object at sentencing, at the time of petitioner's appeal, it does not appear that the Ohio courts consistently required a Blakely objection to be raised at sentencing in order to preserve the issue for appellate review, at least as applied to defendants who, like petitioner, were sentenced after Blakely, but before Foster and whose case remained pending on appeal at the time Foster was decided. Notably, in Foster, the Ohio Supreme Court remanded all cases then pending on direct review, like petitioner's, for re-sentencing without regard to whether the defendant had properly preserved the claim by raising such objection at sentencing. State v. Foster, supra, 109 Ohio St.3d at 31. See also State v. Silsby, 119 Ohio St.3d 370, 373 (2008):
[W]e limited application of Foster to those cases " pending on direct review." (Emphasis added.) Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 104. Black's Law Dictionary defines "pending" as "[r]emaining undecided" or "awaiting decision." Black's Law Dictionary (8th Ed. 2004) 1169. Accordingly, for a criminal action to be "pending on direct review" for Foster purposes, it must have been filed in the court at the time we announced Foster and must have been awaiting an action or a decision at the time of our decision in that case. Foster, ¶ 104.Id. Petitioner's case, which remained pending on direct appeal at the time Foster was decided, falls within this definition. Further, at least prior to the Ohio Supreme Court's September 26, 2007, decision in State v. Payne, 114 Ohio St.3d 502, 506 (2007), holding that a defendant sentenced after Blakely who failed to raise the objection at sentencing forfeited the error for appellate review, Ohio appellate courts disagreed whether a failure to raise a Blakely objection at sentencing precluded appellate review of that claim. For example, the Ohio Seventh District Court of Appeals in State v. Scranton Buchanan, 2006 WL 3059911 (Ohio App. 7th Dist. October 26, 2006), declined to adopt that rule:
[T]he Ninth and Tenth Appellate Districts have found that Foster issues in some situations are waived if they are not raised to the trial court. State v. Silverman, 10th Dist. Nos. 05AP-837, 05AP-838, 05AP839, 2006-Ohio-3826, ¶ 139-141; State v. Jones, 9th Dist. No. 22811, 2006-Ohio-1820. The Sixth Appellate District, however, has determined that the principles of waiver are inapplicable in the Foster analysis. State v. Brinkman, 6th Dist. No. WD-05-058, 2006-Ohio-3868. The situations in which these districts are addressing waiver are where the defendant was sentenced after Blakely was decided and failed to raise Blakely and it principles to the sentencing court. The matter at hand is one of those situations. Buchanan was sentenced post- Blakely and the record is devoid of any indication that Buchanan raised any Blakely issue with the sentencing court. Accordingly, we must determine whether the principles of waiver are applicable in this situation.
The Ohio Supreme Court addressed waiver in the Foster opinion. However, the defendants in Foster were sentenced pre- Blakely. The Foster holding clearly indicates that if a defendant had been sentenced prior to the decision in Blakely and does not make an argument about the potential unconstitutionality of Ohio's felony sentencing scheme, the argument is not waived. Foster, at ¶ 30-33. However, Foster does not speak to the situation where a defendant was sentenced after Blakely was decided and failed to raise issues concerning Blakely and Ohio's felony sentencing scheme.
As stated above, the Ninth and Tenth Appellate Districts have stated that defendants sentenced post Blakely and did not raise Blakely to the sentencing court have waived any such argument. These courts have explained:
"In State v. Draughon, Franklin App. No. 05AP-860, 2006-Ohio-2445, at ¶ 7, we acknowledged the `broad language the Supreme Court of Ohio used in Foster when it ordered resentencing for all cases pending on direct review.' However, we concluded that `a defendant who did not assert a Blakely challenge in the trial court waives that challenge and is not entitled to a resentencing hearing based on Foster.' Id. In concluding as such, we `consider[ed] the language used in United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, the case that Foster relied on in arriving at' its decision to sever the unconstitutional statutes from Ohio's felony sentencing laws. Id. `In Booker, the United States Supreme Court applied Blakely to the Federal Sentencing Guidelines.' Id. `The Booker Court applied its holding to all cases on direct review.' Id. However, the Booker court `expected reviewing courts to apply "ordinary prudential doctrines," such as waiver * * * to determine whether to remand a case for a new sentencing.' Id., quoting Booker at 268. `Thus, in accordance with the well-settled doctrine of waiver of constitutional challenges, and the language in Booker,' we held in Draughon that a ` Blakely challenge is waived by a defendant sentenced after Blakely if it was not raised in the trial court.' Draughon at ¶ 8.
"Here, the trial court sentenced appellant after the United States Supreme Court issued Blakely. Thus, appellant could have objected to his sentencing based on Blakely and the constitutionality of Ohio's sentencing scheme. Appellant did not do so. Therefore, pursuant to Draughon, we conclude that appellant waived his Blakely argument on appeal. See Draughon at ¶ 7.
"Accordingly, based on the above, we need not reverse appellant's prison sentences on Eighth Amendment or Blakely grounds. As such, we overrule appellant's second and third assignments of error." State v. Silverman, 10th Dist. Nos. 05AP-837, 05AP-838, 05AP839, 2006-Ohio-3826, ¶ 139-141. See, also, State v. Jones, 9th Dist. No. 22811, 2006-Ohio-1820.
On the other hand, the Sixth Appellate District has taken the opposite view. State v. Brinkman, 6th Dist. No. WD-05-058, 2006-Ohio-3868. It explained:
"The state responds that appellant is not entitled to be resentenced because he failed to raise the Blakely issue at his sentencing hearing. Citing State v. Murphy, 91 Ohio St.3d 516, 532, 2001-Ohio-112, the state observes that the failure of a party to interject a contemporaneous objection to error, even constitutional error, waives further consideration. The state insists that such should be the fate of a Blakely objection. "We find this argument to be inconsistent with Foster, which clearly directs that, `* * * those [cases] pending on direct review must be remanded to trial courts for new sentencing hearings * * *.' Foster at ¶ 104; State v. Mota, 6th Dist. No. L-04-1354, 2006-Ohio-3800. Consequently, appellant's third assignment of error is well-taken." Id. at ¶ 30-31.
In making such a holding, the Sixth Appellate District acknowledged that its decision was in conflict with the Ninth and Tenth Appellate Districts. As such, it certified a conflict to the Ohio Supreme Court on July 28, 2006.
After reviewing our sister districts' analysis on the issue, we tend to agree with the Sixth Appellate District. We agree that the principles of waiver do not apply to Foster.Id. In State v. Silsby, supra, 199 Ohio St.3d at 373, the Ohio Supreme Court stated:
[W]e recently decided State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 1, holding that the failure to raise Foster errors at sentencing constitutes a forfeiture of the issue necessitating application of the plain-error doctrine by reviewing courts. An appellate court, therefore, is not required to reverse a sentence that violates our holding in Foster if no objection was made in the trial court; it may instead review the sentence for plain error.Id.
As noted supra, petitioner filed his appellate brief on January 26, 2006, long after the United States Supreme Court's June 24, 2004, decision in Blakely, but shortly before the Ohio Supreme Court's February 27, 2006, decision in Foster. The appellate court dismissed his appeal on August 15, 2006. Further, the State acknowledged in its appellate brief that a partial remand of petitioner's sentence was appropriate under Foster. See Exhibit 9 to Return of Writ. Under these circumstances, this Court is reluctant to conclude that the procedural rule relied on by the state appellate court foreclosing appellate review of petitioner's Blakely claim was consistently enforced under Maupin so as to bar federal habeas corpus review of this claim. "A state procedural rule is adequate if it was `firmly established' and `regularly followed' by the time it was applied in this case." Monzo v. Edwards, 281 F.3d 568, 577 (6th Cir. 2002), citing Ford v. Georgia, supra, 498 U.S. at 423-24; Johnson v. Mississippi, 486 U.S. 578, 587 (1988); see also Carpenter v. Edwards, 113 Fed. Appx. 672, 677 (6th Cir. Oct. 28, 2004) (unpublished) (Although Rule 26(B) had not been regularly followed in 1994, application of rule had been regularized by 1998); Richey v. Mitchell, 395 F.3d 660, 679-80 (6th Cir. 2005) (same).
Still, the record fails to reflect that petitioner's Blakely claim warrants federal habeas corpus relief.
B. Merits
Because the state courts did not address the merits of petitioner's Blakely claim, this Court must conduct a de novo review of that claim.
When there is no decision or "no results," federal review is de novo. See Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542 ( de novo when there was no state court decision on second prong of Strickland test). When the state court has failed to articulate a decision or provide a rationale, the district court must distinguish between a situation of "no results" from that of "no reasoning." Howard v. Bouchard, 405 F.3d at 467; McKenzie, 326 F.3d at 727. As illustrated in McKenzie, the "no reasoning" situation occurs when the state court has issued a summary order which fails to explain its reasoning, as opposed to the situation where no state court has "directly addressed the specific issue." In the latter situation there are "no results" for the federal court to defer, and de novo review by the federal court is required. See Wiggins v. Smith, 539 U.S. at 534, 123 S.Ct. at 2542; McKenzie, 326 F.3d at 727.Socha v. Wilson, 447 F.Supp.2d 809, 819 (N.D.Ohio 2007).
Petitioner complains that the trial court unconstitutionally made factual findings to justify the imposition of more than minimum terms of incarceration on his aggravated robbery and kidnapping convictions. See Petition; Exhibit 8 to Return of Writ. The trial court sentenced petitioner to life without parole on a charge of aggravated murder, in violation of O.R.C. § 2903.01; fifteen years to life on a charge of murder, in violation of O.R.C. 2903.02; and ten years each on two counts of aggravated robbery and kidnapping. Additionally, the trial court imposed three years in prison on each of petitioner's firearm specification convictions, ordering that all those sentences run consecutively to each other, except the firearm specifications connected to his murder and aggravated murder convictions in counts one and seven, which specifications merged for sentencing purposes. See Exhibit 7 to Return of Writ.
In Washington v. Recuenco, 548 U.S. 212 (2006), the United States Supreme Court held that a Blakely violation does not constitute structural error and is subject to harmless error review.
To establish harmless error such that this Court lets stand a defendant's sentence in spite of errors at trial or sentencing below, the government must "prove that none of the defendant's substantial rights [has] been affected by the error." United States v. Oliver, 397 F.3d 369, 381 (6th Cir. 2005) (citing Fed.R.Crim.P. 52(a)); United States v. Barnett, 398 F.3d 516, 530 (6th Cir. 2005). See also Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (noting that the government bears the burden of proof on harmless error); United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (same). To carry this burden, the government must demonstrate to this Court with certainty that the error at sentencing did not "cause [] the defendant to receive a more severe sentence." Oliver, 397 F.3d at 379 (internal citation omitted); United States v. Hazelwood, 398 F.3d 792, 801 (6th Cir. 2005) ("Under the harmless error test, a remand for an error at sentencing is required unless we are certain that any such error was harmless.") (emphasis added).United State v. Johnson, 467 F.3d 559 (6th Cir. 2006). Here, any Blakely error was harmless.
The imposition of consecutive terms of incarceration did not violate Blakely. Oregon v. Ice, ___ U.S. ___, 129 S.Ct. 711, 714-15 (2009) (6th Amendment does not preclude judicial fact finding as a basis for imposition of consecutive sentences). Further, the imposition of the statutorily mandated consecutive three year terms of incarceration on petitioner's firearm specifications did not violate Blakely. See Exhibit 1 to Return of Writ; O.R.C. § 2929.145 2929.145; 2929.14(D)(1)(a)(ii). Finally, petitioner was sentenced to life without possibility of parole on count seven of the indictment, which charged him with aggravated murder with death penalty specifications. See Exhibit 1 to Return of Writ. Rather than recommending that petitioner receive the death penalty, the jury rendered a verdict, after hearing evidence on mitigating circumstances, that the aggravating circumstances did not outweigh mitigating factors; the jury therefore recommended that petitioner be sentenced to life imprisonment without possibility of parole, which sentence the trial court imposed pursuant to statute. See Exhibits 6, 7 to Return of Writ; O.R.C. § 2929.03(D). Therefore, the imposition of a life sentence without possibility of parole likewise did not violate Blakely. Further, in view of the sentences imposed on the other charges, particularly the sentence of life without possibility of parole, any Blakely error in the trial court's imposition of more than minimum terms of incarceration on his aggravated robbery and kidnapping convictions constituted harmless error. See Washington v. Recuenco, supra.
O.R.C. 2929.14(D)(1)(a)(ii) provides:
Except as provided in division (D)(1)(e) of this section, if an offender who is convicted of or pleads guilty to a felony also is convicted of or pleads guilty to a specification of the type described in section . . . 2941.145 of the Revised Code, the court shall impose on the offender one of the following prison terms:
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(ii) A prison term of three years if the specification is of the type described in section 2941.145 of the Revised Code that charges the offender with having a firearm on or about the offender's person or under the offender's control while committing the offense and displaying the firearm, brandishing the firearm, indicating that the offender possessed the firearm, or using it to facilitate the offense;
O.R.C. 2929.03(D) provides in relevant part:
(1) . . . The defendant shall have the burden of going forward with the evidence of any factors in mitigation of the imposition of the sentence of death. The prosecution shall have the burden of proving, by proof beyond a reasonable doubt, that the aggravating circumstances the defendant was found guilty of committing are sufficient to outweigh the factors in mitigation of the imposition of the sentence of death.
(2) Upon consideration of the relevant evidence raised at trial, the testimony, other evidence, statement of the offender, arguments of counsel, and, if applicable, the reports submitted pursuant to division (D)(1) of this section, the trial jury, if the offender was tried by a jury, shall determine whether the aggravating circumstances the offender was found guilty of committing are sufficient to outweigh the mitigating factors present in the case. If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury shall recommend that the offender be sentenced to one of the following:
(a) Except as provided in division (D)(2)(b) or (c) of this section, to life imprisonment without parole, life imprisonment with parole eligibility after serving twenty-five full years of imprisonment, or life imprisonment with parole eligibility after serving thirty full years of imprisonment[.]
Claim two is without merit.
CLAIM ONE
In claim one, petitioner asserts that he was denied a fair trial when his confession was admitted in violation of Miranda v. Arizona, 384 U.S. 436 (1966). The state appellate court rejected this claim as follows:
By his first assignment of error, defendant argues that the trial court should have suppressed his statements because he made them after the police ignored his request for a lawyer and, instead, interrogated him in violation of his constitutional right to counsel. We disagree.
A criminal suspect subject to a custodial interrogation has the right to consult with an attorney and to have an attorney present during questioning, and the police must explain this right to the suspect prior to questioning him. Miranda v. Arizona (1966), 384 U.S. 436, 479, 86 S.Ct. 1602. If a suspect requests counsel, all interrogation must cease until an attorney is present or the suspect himself initiates communication. Edwards v. Arizona (1981), 451 U.S. 477, 481, 101 S.Ct. 1880; State v. Henness, 79 Ohio St.3d 53, 63, 1997-Ohio-405. To invoke the right to counsel, a suspect must make a request with enough clarity that "a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis v. United States (1994), 512 U.S. 452, 459, 114 S.Ct. 2350. See, also, Henness, at 63; State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, at ¶ 32. If the request is ambiguous or equivocal, the police may continue to question the suspect; they need not stop the interrogation to clarify whether the suspect actually invoked his right to counsel. Davis, at 461-462; State v. Jackson, 107 Ohio St.3d 300, 2006-Ohio-1, at ¶ 93.
In the case at bar, defendant did not unambiguously, unequivocally request an attorney. Defendant's question, "[c]an I have a public defender?" can be interpreted in two different ways: either defendant was asking whether his rights, as he had just read them, included the right to a public defender or he was asking for access to a public defender. Detective Carney's response-that defendant would be entitled to a public defender if he could not afford to hire an attorney-indicates that he believed defendant wanted a clarification of his rights, not that he sought to invoke his right to counsel. Given the ambiguity inherent in defendant's question, we find that a reasonable police officer would come to the same conclusion, and thus, Detective Carney's decision to question defendant without counsel present did not violate defendant's right to counsel. See State v. Foster, Trumbull App. No. 2000-T-0033, 2001-Ohio-8806 (asking "[w]ell, can I have a lawyer present?" was not a clear invocation of the defendant's right to counsel, and thus, a police detective could continue to question him).
Further, even if defendant had invoked his right to counsel, he subsequently initiated further communication with Detective Carney and waived his constitutional rights. As we stated above, once a suspect requests an attorney, interrogation must stop until an attorney is present or the suspect himself initiates communication. Edwards, supra, at 484-485 ("[A]n accused [,] * * * having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."). If the police proceed to interrogate the suspect after he initiates communication, then a court must determine whether the suspect validly waived his previously-invoked right to counsel. Oregon v. Bradshaw (1983), 462 U.S. 1039, 1044, 103 S.Ct. 2830; State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, at ¶ 52. Such a waiver must be knowing and intelligent and a court must find it to be so "`under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.'" Bradshaw, at 1046, quoting Edwards, at 486, fn. 9.
In the case at bar, defendant himself kept the conversation going after his request about the availability of a public defender, asking, "[w]hy do I need a lawyer though. I mean, why am I here?" At that point, Detective Carney refused to engage in any dialogue with defendant about the investigation until defendant read and indicated that he understood the waiver portion of the "Constitutional Rights" form and signed the form. A signed waiver form, such as the "Constitutional Rights" form, is strong proof that a waiver of Miranda rights is knowing and intelligent. State v. Nields, 93 Ohio St.3d 6, 14, 2001-Ohio-1291. Moreover, nothing in the record suggests that defendant waived his rights because his "will was overborne" or that "his capacity for self-determination was critically impaired because of coercive police conduct." Id. See, also, Gapen, at ¶ 53. Therefore, given the totality of the circumstances, we conclude that defendant validly waived his constitutional rights after initiating communication with the police, thus allowing Detective Carney to question him without the presence of a lawyer.
Accordingly, we overrule defendant's first assignment of error.State v. Curtis, supra, 2006 WL 2349455.
The factual findings of the state appellate court are presumed to be correct. 28 U.S.C. § 2254(e) provides:
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.
Further, a federal habeas court cannot grant relief unless the state court contravenes or unreasonably applies federal law or issues a decision based upon an unreasonable determination of the facts:
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
(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).
A state court's determination is contrary to federal law when the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or on indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state court's decision is an unreasonable application of federal law when the state court correctly identified the applicable legal principle from Supreme Court precedent, but applied that principle to the facts before it in an unreasonable manner. Id. at 413, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389.Maldonado v. Wilson, 416 F.3d 470, 475 (6th Cir. 2005). Petitioner has not met this standard here. See Williams v. Taylor, supra.
The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." The privilege against self-incrimination prohibits the government from using any statement against a criminal defendant "stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona, supra, 384 U.S. at 444. A person being questioned while in custodial interrogation must be warned "that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed." Id. "Where a defendant makes a voluntary statement without being interrogated or pressured by an interrogator . . . the statements are admissible despite the absence of Miranda warnings." United States v. Legette, 2007 WL 1796230 (E.D. Michigan June 20, 2007), citing United States v. Murphy, 107 F.3d 1199, 1204 (6th Cir. 1997) (citing Miranda v. Arizona, 384 U.S. 436 (1966)). Law enforcement officers
must immediately cease questioning a suspect who has clearly asserted his right to have counsel present during custodial interrogation until such time as the defendant reinitiates communication or counsel is made available. Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).Zaffino v. Konteh, 2006 WL 2360902 (N.D.Ohio August 15, 2006). However,
where a request to cease questioning is "ambiguous or equivocal" in that a reasonable officer in light of the circumstances would have understood that the suspect might be invoking the right [to remain silent],
cessation of questioning is not required. Calhoun v. McKee, 2007 WL 1452911 (E.D. Michigan May 15, 2007), quoting Davis v. United States, 512 U.S. 452, 459 (1994). The United States Court of Appeals for the Sixth Circuit has likewise held that the defendant must clearly and unequivocally assert his right to silence before police must cease questioning him. United States v. Hurst, 228 F.3d 751, 759-60 (6th Cir. 2000).
Petitioner does not dispute the factual findings of the state appellate court. See Petition; Exhibit 8 to Return of Writ. Rather, he contends that, as a matter of law, police were required to stop questioning because petitioner invoked his right to counsel by asking whether a public defender would be made available. Upon review of the entire record, however, this Court is not persuaded that the state appellate court's rejection of this claim was contrary to or an unreasonable application of federal law, or an unreasonable determination of the facts such that habeas corpus relief is warranted. See Williams v. Taylor, supra; 28 U.S.C. § 254(d), (e).
Claim one is without merit.
For all the foregoing reasons, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
If any party objects to this Report and Recommendation, that party may, within ten (10) 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).