613 F. Supp. 782 | N.D. Ohio | 1985
ORDER
On September 14, 1981, petitioner filed for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On June 2, 1978, petitioner and a female accomplice attempted to steal cigarettes from a grocery store in Cuyahoga County, Ohio. They were interrupted and fled the store. At a nearby gas station, petitioner stole a 1970 Plymouth Valiant by forcing the driver out. Petitioner and his accomplice were able to get away.
On July 20, 1978, petitioner and an accomplice were caught in a department store in Lake County while attempting to steal some dresses. They had arrived at the department store in the same Plymouth Valiant which' had been stolen on June .2, 1978.
Petitioner was indicted in both Lake and Cuyahoga Counties. In Cuyahoga County, petitioner was charged with committing a theft involving a. car and using force against the driver thereby violating Ohio Revised Code § 2911.02. The Cuyahoga County indictment was filed on September 20, 1978.
In Lake County, petitioner was charged with receiving or retaining an automobile knowing it to have been obtained through a theft in violation of Ohio Revised Code § 2913.51. The Lake County indictment was filed September 13, 1978.
The Lake County indictment, although concerning a criminal act which occurred later, was tried first. The prosecution presented the testimony of the car owner and one eyewitness to the June 2nd robbery to establish that the Plymouth Valiant had been stolen. Neither witness was asked to identify the individual who had stolen the car; the eyewitness said she would not be able to identify the individual who stole the car. The defendant-petitioner did not dispute the claim of theft. He testified that he was in the stolen car on July 20. At the time of his arrest, he had the keys to the car in his possession. However, petitioner claimed the car had been driven to the department store by a Buster Lee. Defendant-petitioner admitted that he had driven the car on the previous day and since Buster Lee said he [Lee] owned the car, petitioner had no knowledge the car had been stolen. The Lake County jury acquitted petitioner of the charge of receiving or retaining stolen property.
Petitioner was subsequently tried in Cuyahoga County surrounding the event of June 2. Numerous eyewitnesses identified petitioner as the individual who forced the driver out of the car and drove it away. Petitioner was convicted on two counts of violating O.R.C. § 2911.02.
III.
DOUBLE JEOPARDY CLAIM
Petitioner claims that since he was acquitted in Lake County of receiving or retaining an automobile he knew was stolen, the state is collaterally estopped from trying him in Cuyahoga County on the charge of committing a theft involving a car and using force against the driver. Petitioner relies on Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) wherein the Court held that the Fifth Amendment double jeopardy clause embodies collateral estoppel as a constitutional requirement. Id. at 445, 90 S.Ct. at 1195. The magistrate’s report correctly sets out the test applied by the Ashe court to determine whether there is a violation of double jeopardy:
Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” The inquiry “must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.” Sealfon v. United States, 332 U.S. 575, 579, 68 S.Ct. 237, 240, 92 L.Ed. 180 (1948).
For double jeopardy purposes the state will be considered a single entity acting through subordinate units, namely the counties. Brown v. Ohio, 432 U.S. 161,
An examination of the charges themselves is a good starting point. The Lake County indictment was under Ohio Revised Code section § 2913.51, entitled “Receiving Stolen Property” which states:
(A) No person shall receive, retain, or dispose of property of another, knowing or having reasonable cause to believe that the property had been obtained thorough commission of a theft offense.
The Cuyahoga County indictment was under Ohio Revised Code section 2911.02, entitled “Robbery,” which states:
(A) No person, in attempting or committing a theft offense, as defined in section 2913.01
As the Magistrate correctly notes, the common element in the two offenses is the commission of a theft. However, the critical difference is that under § 2913.51 the individual need not have been involved in the actual commission of the theft offense at all; he simply needs to know the property was stolen.
It is instructive to examine the cases cited by petitioner. In Ashe, the defendant was charged with the armed robbery of each of six poker players and the theft of a car. In May 1960, the defendant was tried on the charge of robbing one of the poker players. The defense offered no testimony Nonetheless, the jury found the petitioner “not guilty due to insufficient evidence.” Id. 397 U.S. at 438-39, 90 S.Ct. at 1191-92. Six weeks later, the petitioner was tried again, this time for the robbery of another poker player. This time the jury found the petitioner guilty. Id. at 440, 90 S.Ct. at 1192. The Court stated that “collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be relitigated between the same parties in any future lawsuit.” Id. at 443, 90 S.Ct. at 1194. The Court concluded:
For the record is utterly devoid of any indication that the first jury could rationally have found that an armed robbery had not occurred, or that [the chief witness] had not been a victim of that robbery. The single rationally conceivable issue in dispute before the jury was whether the petitioner had been one of the robbers____ once a jury had determined upon conflicting testimony that there was at least a reasonable doubt that the petitioner was one of the robbers, the State could not present the same or different identification evidence in a second prosecution for the robbery ... in the hope that a different jury might find that evidence more convincing. The situation is constitutionally no different here, even though the second trial related to another victim of the same robbery.
Id. at 445-46, 90 S.Ct. at 1195.
The Magistrate analogizes the instant case with United States v. Cala, 521 F.2d 605 (2d Cir.1975). In Cala, 521 F.2d 605 (1975), defendant was arrested and charged with possession of approximately $160,000
As to the instant case, in the first trial in Lake County, the issue the jury was faced with was whether (1) petitioner tried to steal dresses on July 20, 1978 and (2) whether petitioner knew the car he possessed on July 20, 1978 was stolen. The Cuyahoga trial required the prosecution to show (1) that petitioner was involved in a theft offense and (2) that he used or threatened the use of force against another on June 2, 1978, both in the grocery store and regarding the car. Judge’s Instructions, Cuyahoga County Tr. at 213-218.
An examination of the trial transcripts reveals largely separate testimony about two separate events. The Lake County transcript shows the prosecution emphasized the theft of the dresses. The owner of the car testified that it had been stolen. Lake County Tr. 5-15. The second witness, Shelly Goldstein Kabert, merely testified that her sister had been forced out of the car but was not able to specifically identify him. Lake County Tr. at 19. The Cuyahoga County Transcript does include testimony from Lorrie Goldstein and Shelley Kabert (who had testified in Lake County) but the emphasis there was that force was being used on June 2, 1978. As the Magistrate correctly found, the eyewitnesses to the June 2 robbery only testified at the Cuyahoga County trial.
Petitioner is correct in noting that Cala differs from the instant case since intent and knowledge differ. Petitioner’s Objections to Magistrate’s Report at 3-4. However, in the instant case, petitioner errs in saying that “the only way Lake County could have proved knowledge and retention by the petitioner was ... by proving that petitioner stole the car and retained it in his possession.” Objections, at 4. It was not necessary for the State to prove in Lake County that petitioner stole the car at all; all that was necessary was for petitioner to have used the car knowing it had been stolen. Indeed the jury could have concluded that petitioner was not involved in the June 2nd theft but had been given the car by Buster Lee and unknowingly used it to drive to the mall. However, in the Cuyahoga County trial, the jury was faced with whether defendant himself actually stole the cigarettes or the car and used force in the commission of the theft. In this Court’s view, the evidence is sufficiently different and the offenses arise out of different transactions (grocery store robbery on June 2nd, department store robbery on July 20th).
Petitioner contends that the state ignored the venue provisions of Ohio Revised Code § 2901.12(H) by splitting its ac
The Supreme Court has recognized that the doctrine of collateral estoppel is not to be applied across the board to bar subsequent criminal prosecutions. See e.g., Standefer v. United States, 447 U.S. 10, 11 n. 16, 100 S.Ct. 1999, 2004 n. 16, 64 L.Ed.2d 689 (1980) (“Nothing in the Double Jeopardy Clause or the Due Process Clause forecloses putting petitioner on trial as an aider and abettor simply because another jury was determined that his principal was not guilty of the offense charged”); Briddle v. Illinois, 450 U.S. 986, 101 S.Ct. 1527, 67 L.Ed.2d 823 (1981) (Cf. Brennan, J. & Stewart J. dissent from certiorari denial). Therefore, petitioner’s Double Jeopardy claim is denied.
IV.
INEFFECTIVE ASSISTANCE OF COUNSEL
The Magistrate has properly interpreted Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) as to the test to determine whether petitioner has suffered ineffective assistance of counsel. Therefore, petitioner’s Double Jeopardy Claim is denied. The petitioner has the burden to show: (1) that counsel’s performance was deficient, that his “counsel’s representation fell below an objective standard of reasonableness.” (104 S.Ct. at 2065) and (2) “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
It does not appear to this Court in reviewing the transcript that counsel’s performance was unreasonable. Although it is true that had counsel raised the double jeopardy claim his client might not have been convicted, that claim could also have been denied. Observing the trial itself, there is no indication that counsel’s performance deprived petitioner of a fair trial. While petitioner may complain that the Strickland standard is “next to impossible to sustain,” the Supreme Court intended to make the standard sufficiently stringent to discourage a “proliferation of ineffectiveness challenges.” 104 S.Ct. at 2066. Petitioner has not met his burden in the instant case.
V.
STATE RIGHT TO SPEEDY TRIAL
The Magistrate’s recommendation that petitioner’s third claim, a violation of Ohio’s statutory right to speedy trial, be denied for lack of jurisdiction is adopted.
VI.
After due consideration and review, the Magistrate’s Report and Recommendation is adopted; the petitioner for writ of habeas corpus is denied.
IT IS SO ORDERED.
. Although petitioner was paroled from the Chillicothe Correctional Institute on September 1, 1983 and was released from parole on October 10, 1984, the fact that petitioner was on parole involves the type of restraint on liberty which satisfies the “custody” requirement for habeas corpus jurisdiction. See Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).
. O.R.C. § 2913.02, entitled “Theft,” states
(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give consent;
(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;
(3) By deception;
(4) By threat.