Opinion

Cox v. Warden, Chillicothe Correctional Institution

Court: District Court, S.D. Ohio
Filed: Aug 1, 2023
Cited by: 0 cases
Authority: More cited than 28.4%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

MICAH A. COX,

Petitioner, : Case No. 3:22-cv-033

- vs - District Judge Walter H. Rice

Magistrate Judge Michael R. Merz

WARDEN,

Madison Correctional Institution,

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Micah Cox under 28 U.S.C. § 2254,

is before the Court decision on the merits. Relevant pleadings are the Petition (ECF No. 3), the

State Court Record (ECF No. 19), the Return of Writ (ECF No. 20), and Petitioner’s Traverse

(ECF No. 29).

Litigation History

Cox was convicted by a Greene County jury of various drug-related offenses and sentenced

to sixteen years imprisonment. On direct appeal, the Ohio Court of Appeals for the Second District

affirmed. State v. Cox, 2012-Ohio-2100 (Ohio App. 2d Dist. May 11, 2012). Cox failed to timely

appeal and the Supreme Court of Ohio denied leave to file a delayed appeal. State v. Cox, 133

Ohio St.3d 1410 (2012). Cox then filed a Petition for Writ of Habeas Corpus in this Court under

Case No. 3-13-cv-200. That case was dismissed with prejudice and the Sixth Circuit denied a

certificate of appealability. Cox v. Warden, 6th Cir. Case No. 14-3393 (6th Cir. Dec. 9,

2014)(unreported; copy at ECF No. 35 in 3:13-cv-200).

On June 7, 2019, Cox filed a “motion for final appealable order”, arguing that the March 7,

2011, judgment entry was void and was not a final appealable order because the judgment entry did

not impose a fine. (State Court Record, ECF No. 19, Exhibit 1). The trial court ruled that the judgment

entry was a final appealable order, but that it did not include a mandatory fine. At a resentencing

hearing held for the purpose of imposing that fine, the trial court waived the fine.

Proceeding pro se on appeal, Cox raised the following assignments of error:

(1) Appellant was denied his sixth amendment right to the effective

assistance of counsel at resentencing

(2) Appellant was denied his constitutional right to be present at

resentencing

(3) Trial court erred when it waived the imposition of the mandatory

fine pursuant to an insufficient affidavit of indigency

(4) Appellant was denied his right of allocution pursuant to Crim.R.

32(a)(1)

(5) Trial court erred when it failed to include appellant’s entire

sentence in one judgment entry.

(Appellant Brief, State Court Record, ECF No. 19, Exhibit 17). The Second District affirmed.

State v. Cox, 2020-Ohio-5030 (Ohio App. 2d Dist. Oct. 23, 2020). The Supreme Court of Ohio

declined further appellate jurisdiction. State v. Cox, 161 Ohio St.3d 1422, Ohio (2021).

Cox filed the instant habeas corpus case on February 3, 2022, pleading the following

grounds for relief:

Ground One: Petitioner was denied his Sixth Amendment right to

the effective assistance of counsel.

Supporting Facts: Counsel failed to object to Petitioner’s right to

be present at resentencing was violated. Counsel demonstrated

divided loyalties failed to confer with Petitioner prior to

resentencing.

Ground Two: Petitioner was denied his Sixth Amendment right to

be physically present for resentencing.

Supporting Facts: Petitioner was resentenced in absentia due to his

refusal to waive his right to be present.

Ground Three: Petitioner was denied due process and equal

protection under the law when an appellate court commits a mistake

of law.

Supporting Facts: Court erroneously determined R.C.

2929.18(B)(1) does not apply to Petitioners case despite explicit

language to the contrary.

Ground Four: Petitioner was denied due process when he was

denied his right of allocution by resentencing him in his absence.

Supporting Facts: By denying Petitioner his right to be physically

present he has effectively denied him his right to allocution.

(Petition, ECF No. 3, PageID #: 5-10, 16).

On motion of Respondent, the Court transferred this case to the Sixth Circuit as a second

or successive habeas corpus petition (ECF No. 13). The Sixth Circuit, however, determined the

petition was not second or successive “because the factual predicate for his proposed claims did

not arise until several years after his initial petition was fully adjudicated. See In re Coley, 871

F.3d 455, 457 (6th Cir. 2017); In re Jones, 652 F.3d 603, 605 (6th Cir. 2010).” In re Cox, 6th Cir.

Case No. 22-3729 (Jan. 24, 2023)(unreported; copy at ECF No. 14).

The case became ripe for decision on remand when Petitioner filed his Traverse (ECF No.

29).

Analysis

Ground One: Ineffective Assistance of Counsel

In his First Ground for Relief, Cox claims he was denied effective assistance of trial counsel

when his attorney failed to object to his absence from the resentencing hearing and otherwise

demonstrated “divided loyalties.”

Respondent asserts the first part of this Ground for Relief – failure to object to Cox’s

absence from re-sentencing – is procedurally defaulted by Cox’s failure to raise that issue on direct

appeal as a constitutional claim. Cox flatly contradicts that assertion: “In the case at bar, Petitioner

has presented each and every claim in this petition, as ‘a federal constitutional claim in substance’

or ‘under the same legal theory.’"

The procedural default doctrine in habeas corpus is described by the Supreme Court as

follows:

In all cases in which a state prisoner has defaulted his federal claims

in state court pursuant to an adequate and independent state

procedural rule, federal habeas review of the claims is barred unless

the prisoner can demonstrate cause of the default and actual

prejudice as a result of the alleged violation of federal law; or

demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406

(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights

claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.

72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal

habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal

habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.

Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,

456 U.S. at 110; Wainwright, 433 U.S. at 87.

[A] federal court may not review federal claims that were

procedurally defaulted in state court—that is, claims that the state

court denied based on an adequate and independent state procedural

rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175

L.Ed.2d 417 (2009). This is an important “corollary” to the

exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124

S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which

a state prisoner fails to exhaust state remedies, a habeas petitioner

who has failed to meet the State’s procedural requirements for

presenting his federal claims has deprived the state courts of an

opportunity to address” the merits of “those claims in the first

instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111

S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default

doctrine thus advances the same comity, finality, and federalism

interests advanced by the exhaustion doctrine. See McCleskey v.

Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 582 U.S. 521, 527 (2017). “[A] federal court may not review federal claims that

were procedurally defaulted in state courts.” Theriot v. Vashaw, 982 F.3d 999 (6th Cir. 2020), citing

Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018) (alteration in original) (quoting Davila v.

Davis, 582 U.S. 521, 527(2017)).

There are occasions when a state court defendant will have made claims in the state courts

which, while not explicitly invoking the United States Constitution, in fact fairly place before the

state courts the substance, both facts and legal theory, of a claim or claims later made in habeas

corpus.

[T]he ways in which a state defendant may fairly present to the state

courts the constitutional nature of his claim, even without citing

chapter and verse of the Constitution, include (a) reliance on

pertinent federal cases employing constitutional analysis, (b)

reliance on state cases employing constitutional analysis in like

factual situations, (c) assertion of the claim in terms so particular as

to call to mind a specific right protected by the Constitution, and (d)

allegation of a pattern of facts well within the mainstream of

constitutional litigation.

Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987); accord, Whiting v. Birt, 395 F.3d 602 (6th Cir.

2005); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000).

To preserve a federal constitutional claim for presentation in habeas corpus, the claim must

be "fairly presented" to the state courts in a way which provides them with an opportunity to

remedy the asserted constitutional violation, including presenting both the legal and factual basis

of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik, 986 F.2d

1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other grounds by

Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792 (6th Cir.

1991). The claim must be fairly presented at every stage of the state appellate process. Wagner v.

Smith, 581 F.3d 410, 418 (6th Cir. 2009).

A claim is fairly presented if the petitioner

(1) relied upon federal cases employing constitutional analysis; (2)

relied upon state cases employing federal constitutional analysis; (3)

phrased the claim in terms of constitutional law or in terms

sufficiently particular to allege a denial of a specific constitutional

right; or (4) alleged facts well within the mainstream of

constitutional law.

Hand v. Houk, 871 F.3d 390, 418 (6th Cir. 2017).

Cox’s first assignment of error on direct appeal was “Appellant was denied his sixth

amendment right to the effective assistance of counsel at resentencing.” On its face, that language

does not call the appellate court’s attention to any particular deficiency in counsel’s performance.

Examining Cox’s Brief on appeal, the Magistrate Judge finds no mention of a claim that it was

ineffective assistance of trial counsel to fail to object to Cox’s physical absence. Rather, the

gravamen of Cox’s claim is that appointed attorney Adrian King undermined Cox’s strategy by

moving to waive the mandatory fine (See Appellant Brief, State Court Record, ECF No. 19,

PageID 251, et seq.).

In deciding the appeal, the Second District does not advert at all to any claim of deficiency

of performance by failure to object to Cox’s absence. State v. Cox, 2020-Ohio-5030, ¶¶ 7-9 (2d

Dist. Oct. 23, 2020).

The Magistrate Judge concludes Cox has procedurally defaulted the first part of his First

Ground for Relief by failing to fairly present it to the Ohio courts. Cox offers no excusing cause.

Respondent apparently concedes that the second part of Cox’s First Ground for Relief –

counsel had “divided loyalties” – is preserved for merits review. As Cox argued that claim in his

appellate brief, it is that he had a strategic reason for wanting the fine imposed, to wit, it would

constitute an increase in the sentence actually imposed, entitling him to a “de novo resentencing

hearing on the additional portion of the sentence." (Brief, State Court Record, ECF No. 19, PageID

251, citing State ex rel Roberts v. Marsh, 156 Ohio St.3d 440 (2019). A second strategic reason

was that such a “correction” in his sentence would allow him to file another federal habeas petition

without its being considered successive. Id., citing In re Stansell, 828 F.3d 412, 416 (6th Cir.

2016).

The Magistrate Judge disagrees with Cox’s reading of Ohio law on resentencing. Marsh,

which he cites, refers to Ohio Supreme Court precedent holding that if the new judgment entry

contains a punishment in addition to what was in the original judgment, the trial court must hold a

hearing on the additional punishment, but only on the additional punishment. State v. Fischer, 128

Ohio St.3d 92 ¶ 2 of the syllabus (2010); State v. Harris, 132 Ohio St.3d 318, ¶ 1 of the syllabus

(2012); State v. Moore, 135 Ohio St.3d 151 (2012). But in 2020 the Ohio Supreme Court decided

State v. Henderson, 161 Ohio St.3d 285 (2020), and held that a judgment imposed by a court with

jurisdiction that omitted a mandatory term was voidable, not void, meaning it could be attacked

only on direct appeal and not collaterally. In doing so the Court built on its prior decision of the

same year, State v. Harper, 160 Ohio St.3d 480 (2020), which returned the Court to its traditional

understanding of the difference between void and voidable judgments.

Thus the current state of Ohio law on resentencing renders Cox’s strategy untenable. His

initial filing that began the execution of the strategy was a Motion for a Final Appealable Order in

which he claimed that his original judgment was void under Moore (Motion, State Court Record,

ECF No. 19, PageID 175). Under Henderson the judgment would have been voidable, but that

claim would have had to be raised on direct appeal, not by motion many years after the direct

appeal proceedings were final. In deciding Cox’s appeal, the Second District did not advert to

Henderson, which had been decided only weeks earlier, but noted that Harper made Cox’s

arguments moot:

In State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d

432, syllabus, the Ohio Supreme Court had held that failure to

impose a mandatory fine rendered that part of the judgment void, as

Cox here contends, and therefore the judgment would be subject to

subsequent attack despite not having been raised on direct appeal.

Moore was recently called into question in State v. Harper, Ohio

Slip Opinion No. 2020-Ohio-2913, ––– N.E.3d ––––, in which the

Supreme Court of Ohio “realigned” its void/voidable jurisprudence,

specifically relating to post-release control, “with the traditional

understanding of void and voidable sentences.” Id. at ¶ 43. In our

opinion, the Harper jurisprudence realignment applies to the failure

to impose a mandatory fine, and that part of Cox's judgment was not

void. Because he did not raise the mandatory fine error in his direct

appeal, he cannot raise it now. That would render moot all his

arguments about appointment of counsel, ineffectiveness, a video

hearing, and the form of the court's judgment, as discussed below,

because if that part of his judgment was not void, he was not entitled

to have the mandatory fine issue revisited. Because Harper was not

raised in the briefs, we alternatively have decided this matter on the

issues raised in briefing.

State v. Cox, 2020-Ohio-5030, n. 1.

The governing standard for ineffective assistance of counsel is found in Strickland v.

Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so

defective as to require reversal of a conviction or death sentence has

two components. First, the defendant must show that counsel's

performance was deficient. This requires showing that counsel was

not functioning as the "counsel" guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the

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. Unless a

defendant makes both showings, it cannot be said that the conviction

or death sentence resulted from a breakdown in the adversary

process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing

Knowles v. Mirzayance, 556 U.S.111 (2009).

Assuming for the sake of argument that trial counsel performed deficiently in not

attempting to execute Cox’s strategy, he has failed to show prejudice because under Ohio law he

was not entitled to collaterally attack his sentence for failure to include the mandatory fine. The

second portion of Cox’s Ground One should be dismissed with prejudice.

Ground Two: Denial of Sixth Amendment Right to be Physically Present at Resentencing

In his Second Ground for Relief, Cox claims he was denied his Sixth Amendment right to

be physically present at the resentencing hearing. Cox raised the failure to bring him to court as

his second assignment of error on appeal and the Second District decided it as follows:

{¶ 10} In his second assignment of error, Cox contends he was

denied his right to be physically present for resentencing. Cox

argues that if he had been present in court, he would have fired his

attorney and would have argued that the trial court was required to

impose a fine.

{¶ 11} We agree that Cox had a right to be physically present for

resentencing. Crim.R. 43(A)(1). We note that a trial court may allow

a defendant to participate by video provided a waiver has been

obtained and other conditions are met. A defendant must make such

a waiver in writing or otherwise on the record. Crim.R. 43(A)(3).

Here neither Cox nor his attorney affirmatively waived his right to

be physically present for resentencing. As set forth above, the record

reflects only that Cox refused to participate in the video proceeding.

Defense counsel proceeded to act on Cox's behalf without raising

the issue of his absence from the courtroom. The trial court then

made a finding of indigence based on Cox's prior affidavit and

waived the fine, as R.C. 2929.18(B)(1) obligated it to do.

{¶ 12} Under these circumstances, we conclude that the trial court

erred in proceeding without an affirmative waiver of Cox's right to

be physically present. We note, however, that a defendant's absence

in violation of Crim.R. 43(A) is subject to harmless-error analysis.

State v. Brown, 2d Dist. Montgomery No. 26320, 2015-Ohio-3912,

¶ 10 (observing that “a defendant's absence in violation of Crim.R.

43(A) can constitute harmless error where he suffered no prejudice,

even though such absence was improper”).

{¶ 13} On the record before us, we find harmless error in Cox's lack

of physical presence for resentencing, and we see no non-frivolous

argument to the contrary. The only issue before the trial court

concerned the imposition of a fine. Based on Cox's own affidavit,

the trial court found him indigent and waived the fine, as it was

required by statute to do (and as it had done at the time of his original

2011 sentencing). We see no evidence to suggest that the outcome

would have been different if Cox had been physically present.

Although Cox claims he would have dismissed counsel and made

various arguments to the trial court, these actions would not have

affected the trial court's obligation to waive the fine upon a finding

of indigence and, in any event, Cox could have presented his

arguments through the video proceeding if he had not refused to

participate. His alleged predicament stemmed from his failure to

participate at all, not his lack of physical presence. For these reasons,

his second assignment of error does not have arguable merit.

State v. Cox, 2020-Ohio-5030 (2d Dist. 2020).

Respondent asserts Ground Two is procedurally defaulted by Cox’s failure to fairly present

it to the Second District as a federal constitutional claim (Return, ECF No. 20, PageID 439-40.)

Cox claims he did fairly present this claim to the Supreme Court of Ohio (Traverse, ECF No. 29,

PageID 498-99.) Respondent concedes there was a “brief nod” to federal constitutional law in

Cox’s Memorandum in Support of Jurisdiction (Return, ECF No. 20, PageID 440) and Cox argues

in the Traverse that a brief nod is enough (ECF No. 29, PageID 498-99)1.

The flaw in this argument is that Cox made no nod at all to the United States Constitution

on this claim in his appeal to the Second District. An omission at that stage cannot be cured by

raising the issue for the first time in the Ohio Supreme Court which will not decide issues that have

not first been presented to the Court of Appeals. Because Cox did not present this claim as a

constitutional issue to the Second District, it is procedurally defaulted.

Even if the claim had been properly presented and Cox had been found to have a

constitutional right (as opposed to a violation of Ohio Crim. R. 43), it would still be subject to

harmless error analysis. Considering the merits of this claim, the Second District held:

¶ 13} On the record before us, we find harmless error in Cox's lack