Sowell v. Warden, Southern Ohio Correctional Facility - Document 19
Memorandum, Opinion, and Order Adopting Report and Recommendation of the Magistrate Judge and dismissing petitioner's petition. An appeal from this decision may not be taken in good faith and there is no basis upon which to issue a certificate of appealability. Judge John R. Adams on 2/21/12. (K,C)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
Warden, Southern Ohio Correctional
CASE NO. 1:10CV2377
JUDGE JOHN R. ADAMS
MEMORANDUM OF OPINION AND
This action is before the Court upon objections filed by Petitioner Marious Sowell,
asserting error in the Report and Recommendation (“the R&R”) of Magistrate Judge Greg White.
The Court ADOPTS the R&R (Doc. 15) in its entirety. The Petition is DENIED.
Where objections are made to a magistrate judge’s R&R this Court must:
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.
Fed. R. Civ. P. 72(b)(3). The Court has reviewed de novo the R&R as it relates to Sowell’s
objection. The objection lack merit.
Sowell first contends that the R&R erred when it found no error in the form of Sowell’s
indictment with respect to his burglary charge. Sowell’s objections here are two-fold. Initially,
Sowell contends that the R&R improperly concluded that AEDPA deference applied to his
claim. Next, Sowell asserts that even with deference, his claim has merit.
The Court need not reach the merits of Sowell’s contentions regarding deference under
the AEDPA. Assuming arguendo that the state court failed to give reasons for rejecting Sowell’s
federal claim and further assuming arguendo that a de novo review applies, Sowell’s claim lacks
In this ground for relief, Sowell contends that his due process rights were violated when
the indictment failed to specify the underlying criminal offense that supported his charge of
burglary. There is no dispute that the R&R properly identified the federal law at issue:
Our prior cases indicate that an indictment is sufficient if it, first, contains the
elements of the offense charged and fairly informs a defendant of the charge
against which he must defend, and, second, enables him to plead an acquittal or
conviction in bar of future prosecutions for the same offense. It is generally
sufficient that an indictment set forth the offense in the words of the statute itself,
as long as those words of themselves fully, directly, and expressly, without any
uncertainty or ambiguity, set forth all the elements necessary to constitute the
offence intended to be punished. Undoubtedly the language of the statute may be
used in the general description of an offence, but it must be accompanied with
such a statement of the facts and circumstances as will inform the accused of the
specific offence, coming under the general description, with which he is charged.
Hamling v. United States, 418 U.S. 87, 117-118 (1974). Furthermore, Sowell does not dispute
that the indictment must be read as a whole to determine whether he was properly placed on
notice of the charges against him.
The R&R concluded that Sowell was properly apprised of the underlying felony because
the indictment also included a charge of tampering with evidence. The R&R went on to note that
the transcript reflects that Sowell’s defense counsel was clearly aware of this fact and even
argued the insufficiency of the evidence with respect to the tampering charge in conjunction with
his insufficiency argument regarding the burglary charge. Sowell’s objections do not dispute this
fact. Instead, Sowell appears to argue that the indictment was insufficient because the State of
Ohio did not maintain a specific theory at different levels of appellate review.
Sowell’s argument in that regard would more properly be characterized as an assertion
that his due process rights were violated by an amendment or variance to the indictment. 1
Sowell, however, never advanced this argument at any stage of his state court proceedings or his
federal habeas proceeding. Instead, Sowell appears to argue that because the State of Ohio may
have construed the indictment more broadly than permissible, he was not placed on proper notice
of the charges against him. However, the R&R properly read the indictment as a whole and
properly concluded that it placed Sowell on notice of the charges against him. See Frazier v.
Mitchell, 188 F.Supp. 2d 798, 828 (N.D.Ohio 2001) reversed on other grounds by Frazier v.
Huffman, 343 F.3d 780 (6th Cir. 2003).
“Even if a reading of the burglary charge in the context of the other charges in the
indictment failed to apprise the petitioner of the nature of the underlying felony,
the burglary charge nonetheless met due process requirements. See West v.
Johnson, 92 F.3d 1385, 1396 n. 15 (5th Cir.1996) (where indictment, alleging
merely “burglary of a habitation” satisfied requirements of state law, habeas relief
Frazier, 188 F.Supp.2d at 828.
In that regard, the Court would note that the State of Ohio has previously held that the
underlying criminal offense that supports a burglary charge is not an element of the offense of
burglary. Relying heavily on Schad v. Arizona, 501 U.S. 624 (1991), the Ohio Supreme Court
found that the underlying offense was not an element of burglary, but rather a means of
“An amendment of the indictment occurs when the charging terms of the indictment are altered,
either literally or in effect, by prosecutor or court after the grand jury has last passed upon them.
A variance occurs when the charging terms of an indictment are left unaltered, but the evidence
offered at trial proves facts materially different from those alleged in the indictment.” United
States v. Ford, 872 F.2d 1231, 1235 (6th Cir. 1989) (quoting Gaither v. United States, 413 F.2d
1061, 1071 (D.C. Cir. 1969)).
satisfying the mens rea element. See State v. Gardner, 118 Ohio St.3d 420 (2008). Accordingly,
the court therein approved of jury instructions that allowed a jury to disagree on the underlying
offense, but still unanimously agree that burglary had been committed. As such, even Sowell’s
argument that the State of Ohio raised different theories than the one contained in the indictment
cannot offer him relief.
Upon a de novo review of the R&R and the underlying state court decision, the Court
finds that Sowell was properly apprised of the charges against him. Accordingly, his due process
B. Preservation of Exculpatory Evidence
Sowell next contends that the R&R erred when it found that the state court made no error
in determining that a destroyed videotape was not materially exculpatory evidence. The Court
finds no merit to this objection.
Sowell again admits that the state court and the R&R properly identify the federal law at
issue, namely California v. Trombetta, 467 U.S. 479 (1984) and Arizona v. Youngblood, 488
U.S. 51 (1988). Sowell contends that videotape surveillance that was destroyed was materially
exculpatory. In rejecting this claim, the state court and the R&R found that trial testimony about
the videotape indicated as follows: “[T]he pictures itself were very grainy, and they were very
hard to describe what you were seeing.” Doc. 12-5 at 200. “I believe we – there was people –
two individuals who came through the hotel. However, you could not make out any description
of them.” Doc. 12-5 at 200. “It – it was very undiscernible.” Doc. 12-5 at 201. Defense
counsel also inquired as follows:
“Were you present when – or did you watch any of the taped footage of the
individuals by the grease pit?
“It didn’t pick up anything.”
“What do you mean it didn’t pick up anything?”
“Because of the way the camera skips, it’s not – it doesn’t record in real-time.”
Doc. 12-5 at 202. Despite this testimony, Sowell’s objection contends “even if the defendants
were unrecognizable, the tape would have shown whether Sowell and/or Harris stopped or
dallied near the grease pit[.]” Doc. 18 at 19. As the testimony makes clear that the tapes would
not have been helpful in determining this fact, Sowell cannot succeed on his claim that the tape
was materially exculpatory.
Instead, the R&R and the State of Ohio properly concluded that the evidence was, at best,
As Sowell raises no argument that the review under this standard was
improper and the Court has rejected any alternative standard, this objection is overruled.
Sowell next contends that his due process rights were violated because there was
insufficient evidence to support his convictions. The Court finds no merit in this contention.
Sowell’s sole argument with respect to this claim is that the State’s expert testimony
regarding gunshot residue was equivocal. Specifically, Sowell contends that the State’s expert
conceded that the residue on Sowell’s right hand could have come from 1) firing the weapon, 2)
handling the weapon shortly after it was fired, or ) being near the weapon when it was fired.
Sowell asserts that since only one of these theories results in his guilt, the evidence against him
was insufficient to prove his guilt beyond a reasonable doubt. This argument ignores the
remaining evidence against him. Furthermore, it wholly ignores the analysis performed by the
state appellate court and the analysis within the R&R.
For example, Chantez Moore, one of the victims shot during the nightclub fight, testified
that Sowell’s co-defendant, Nathaniel Harris, could not have been the individual that shot him.
Specifically, Moore testified that he was on top of Harris, punching him, when he was shot.
Thus, Moore’s testimony, when viewed in a light most favorable to the prosecution, strongly
supported a finding that Sowell was the shooter.
Additional circumstantial evidence also
supported Sowell’s guilt. He and Harris fled immediately after the altercation – a clear indicator
of guilt. Moreover, there was no dispute that he and Harris entered the hotel and offered a hotel
employee $1,000 to be shown an alternate exit. Furthermore, there is no dispute that the gun
found in the grease vat of the hotel fired the bullets recovered from the shooting victims.
Accordingly, there was substantial circumstantial evidence that pointed to Sowell’s guilt, well
beyond the gunshot residue testimony. This objection lacks merit.
D. Ineffective Assistance of Counsel
Sowell next contends that the R&R erred in its analysis of his ineffective assistance of
counsel claims. The Court disagrees.
Initially, to the extent Sowell’s argued his counsel was ineffective for failing to challenge
his indictment and failing to raise a challenge to the destruction of evidence, the claim lacks
merit. As noted above, there was no error in the proceedings as it relates to these issues. As
such, they cannot support a claim of ineffective assistance of counsel.
Sowell also contends that his counsel was ineffective for failing to seek to exclude the
state’s expert regarding gunshot residue and failing to object to prosecutorial misconduct. The
R&R properly noted that Sowell never fully articulated his argument regarding exclusion of the
gunshot residue in state court. Sowell appears to contend that page limitations prohibited him
from doing so. Sowell has offered no legal authority that would suggest that he can be relieved
of his obligation to demonstrate error due to page limitations. This argument, therefore, is
rejected. As Sowell never provided any argument to the state court, beyond a citation to Daubert,
this Court cannot conclude the state court was unreasonable in rejecting his assertion that counsel
was ineffective for failing to move to strike this testimony.
Additionally, the R&R properly rejected Sowell’s claim that counsel was ineffective for
failing to object to prosecutorial misconduct.
Once again, Sowell failed to identify in his
argument to the state court any particular prosecutorial misconduct. It was not until these federal
proceedings that Sowell highlighted any particular questioning or comments by the prosecutor
that he believes involved misconduct. While this alone is sufficient to overrule his objection, the
Court notes that the R&R also properly concluded that the state was surprised by the testimony
of its own witnesses, thereby allowing impeachment. Moreover, the R&R also properly found
that any alleged misconduct was so minimal in the overall context of the case that it did not
result in reversible error, let alone a constitutional violation.
Accordingly, Sowell’s final
objection is overruled.
The Court hereby ADOPTS the Report and Recommendation in its entirety. Sowell’s
Petition for Habeas Corpus is DENIED.
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.
There is no basis on which to issue a certificate of
appealability. Fed. R. App. P. 22(b); 28 U.S.C. § 2253(c).
IT IS SO ORDERED.
February 21, 2012
/s/ John R. Adams_______
JUDGE JOHN R. ADAMS
UNITED STATES DISTRICT COURT