J. GREGORY WEHRMAN, Magistrate Judge.
Petitioner, an inmate in state custody at the Southeastern Correctional Institution, through counsel, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the petition, respondent's return of writ, and petitioner's reply. (Docs. 1, 5, 13). For the reasons stated below, the undersigned recommends that the petition be denied.
On December 6, 2012, the Butler County, Ohio grand jury returned an eight-count indictment charging petitioner with one count each of murder, aggravated burglary, aggravated robbery, and having weapon under disability. (Doc. 5, Ex. 1). The murder, aggravated burglary, and aggravated robbery all contained firearm specifications.
Petitioner filed a motion to dismiss the firearm specifications, arguing that he could not be found guilty of the specifications on a theory of complicity. (Doc. 5, Ex. 2). On July 24, 2013, the trial court denied petitioner's motion. (Doc. 5, Ex. 3).
The case proceeded to trial. Petitioner filed a Rule 29 motion for acquittal, which was denied by the trial court. (See Doc. 5, Ex. 10, ¶12). Petitioner was subsequently found guilty of murder, aggravated burglary, and aggravated robbery. (Doc. 5, Ex. 6). The jury found petitioner not guilty on the firearm specifications and the charge of having weapons while under disability.
On October 21, 2013, petitioner was sentenced to prison terms of fifteen years to life for the murder conviction and ten years for the aggravated burglary conviction, to be served consecutively. (See id.). The trial court merged the aggravated robbery conviction for the purpose of sentencing upon finding that it was an allied offense of similar import to murder, resulting in a total aggregate prison sentence of twenty-five years to life in the Ohio Department of Rehabilitation and Corrections.
Petitioner, through counsel, filed a timely notice of appeal to the Ohio Court of Appeals. (Doc. 5, Ex. 7). Petitioner raised the following two assignments of error in his appellate brief:
(Doc. 5, Ex. 8). On September 15, 2014, the Ohio Court of Appeals affirmed the judgment of the trial court. (Doc. 5, Ex. 10).
On December 17, 2014, petitioner filed a "notice of pro-se appearance," indicating that petitioner would represent himself in all future pleadings. (Doc. 5, Ex. 11). Petitioner also requested that the appeals court grant him an extension of time to file an application to reopen his appeal pursuant to Ohio App. R. 26(B) and to order his appellate counsel to provide him with transcripts. (See Doc. 5, Ex. 12). The court denied petitioner's motions on December 29, 2014. (Doc. 5, Ex. 15).
Meanwhile on October 28, 2014, petitioner, through counsel, filed a timely notice of appeal to the Ohio Supreme Court. (Doc. 5, Ex. 16). In his memorandum in support of jurisdiction, petitioner raised the following two propositions of law:
(Doc. 5, Ex. 17). On March 11, 2015, the Ohio Supreme Court declined to accept jurisdiction of the appeal. (Doc. 5, Ex. 21).
Petitioner, through counsel, filed the instant federal habeas corpus action. (Doc. 1). Petitioner raises one ground for relief in the petition:
(Doc. 1 at PageID 2).
Respondent has filed a return of writ in opposition to the petition. (Doc. 5). According to respondent, petitioner's sole ground for relief is without merit.
On August 4, 2016, petitioner filed a traverse and motion to submit a state-law question to the Ohio Supreme Court.
In this federal habeas case, the applicable standard of review governing the adjudication of constitutional issues raised by petitioner to the state courts is set forth in 28 U.S.C. § 2254(d). Under that provision, a writ of habeas corpus may not issue with respect to any claim adjudicated on the merits by the state courts unless the adjudication either:
28 U.S.C. § 2254(d).
"A decision is `contrary to' clearly established federal law when `the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Otte v. Houk, 654 F.3d 594, 599 (6th Cir. 2011) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). "A state court's adjudication only results in an `unreasonable application' of clearly established federal law when `the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.'" Id. at 599-600 (quoting Williams, 529 U.S. at 413).
The statutory standard, established when the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) was enacted, is a difficult one for habeas petitioners to meet. Id. at 600. As the Sixth Circuit explained in Otte:
Id. (emphasis in original). The Supreme Court recently extended its ruling in Harrington to hold that when a state court rules against a defendant in an opinion that "addresses some issues but does not expressly address the federal claim in question," the federal habeas court must presume, subject to rebuttal, that the federal claim was "adjudicated on the merits" and thus subject to the "restrictive standard of review" set out in § 2254(d). See Johnson v. Williams, U.S., 133 S.Ct. 1088, 1091 (2013).
Although the standard is difficult to meet, § 2254(d) "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings" and "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Harrington, 131 S.Ct. at 786. In other words, to obtain federal habeas relief under that provision, the state prisoner must show that the state court ruling on the claim presented "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 786-87.
The Supreme Court has made it clear that in assessing the merits of a constitutional claim under § 2254(d), the federal habeas court must apply the Supreme Court precedents that controlled at the time of the last state-court adjudication on the merits, as opposed to when the conviction became "final." Greene v. Fisher, U.S., 132 S.Ct. 38, 44-45 (2011); cf. Otte, 654 F.3d at 600 (citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)) (in evaluating the merits of a claim addressed by the state courts, the federal habeas court must "look to Supreme Court cases already decided at the time the state court made its decision"). In Greene, 132 U.S. at 44, the Court explained:
Decisions by lower courts are relevant "to the extent [they] already reviewed and interpreted the relevant Supreme Court case law to determine whether a legal principle or right had been clearly established by the Supreme Court." Otte, 654 F.3d at 600 (quoting Landrum v. Mitchell, 625 F.3d 905, 914 (6th Cir. 2010), cert. denied, 132 S.Ct. 127 (2011)). The writ may issue only if the application of clearly-established federal law is objectively unreasonable "in light of the holdings, as opposed to the dicta, of the Supreme Court's decisions as of the time of the relevant state court decision." McGhee v. Yukins, 229 F.3d 506, 510 (6th Cir. 2000) (citing Williams, 529 U.S. at 412).
In his single ground for relief, petitioner contends that his convictions were not supported by sufficient evidence. On direct appeal, the Ohio Court of Appeals was the only state court to issue a reasoned decision addressing the merits of petitioner's assignments of error challenging the sufficiency the evidence. The court provided the following summary of the testimony leading to petitioner's convictions and rejected his ground for relief, reasoning in pertinent part as follows:
(Doc. 5, Ex. 10 at PageID 99-108).
After review of the record in this case, the undersigned finds that petitioner is not entitled to habeas relief based upon his sufficiency of evidence claim. The clearly-established standard of review for evaluating the merits of constitutional claims challenging the sufficiency of the evidence was established by the Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979). As the Supreme Court held in Jackson, because the Due Process Clause requires the State to prove beyond a reasonable doubt every fact necessary to constitute the charged offense, In Re Winship, 397 U.S. 358, 363-64 (1970), "the relevant question" in assessing the sufficiency of the evidence "is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319 (emphasis in original).
Under the Jackson standard, the State is not required to rule out every hypothesis except that of guilt beyond a reasonable doubt. Id. at 326. Rather, "a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id.; see also Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983). It is the responsibility of the trier of fact to resolve conflicts in testimony, to weigh the evidence and to draw reasonable inferences from the evidence. Jackson, 443 U.S. at 319. Consequently, the reviewing court is not permitted to reweigh the evidence, reevaluate the credibility of witnesses, make its own subjective determination of guilt or innocence, or otherwise substitute its opinion for that of the jury. See id. at 318-19 & n.13; see also United States v. Fisher, 648 F.3d 442, 450 (6th Cir. 2011) (citing Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009)); York v. Tate, 858 F.2d 322, 329 (6th Cir. 1988) (per curiam). "Circumstantial evidence alone is sufficient to support a conviction." Newman v. Metrish, 543 F.3d 793, 796 (6th Cir. 2008) (quoting Johnson v. Coyle, 200 F.3d 987, 992 (6th Cir. 2000)); see also Fisher, 648 F.3d at 450. Due process is satisfied as long as such evidence is enough for a rational trier of fact to make a permissible inference of guilt, as opposed to a reasonable speculation that the petitioner is guilty of the charged crime. Newman, 543 F.3d at 796-97 (and Sixth Circuit cases cited therein).
Moreover, federal habeas review of a claim challenging the sufficiency of the evidence is even further limited. As the Sixth Circuit explained in Brown, 567 F.3d at 205, the federal habeas court is "bound by two layers of deference to groups who might view facts differently than [the habeas court] would." The federal habeas court must defer not only to the trier of fact's findings as required by Jackson, but under 28 U.S.C. § 2254(d), must also "defer to the state appellate court's sufficiency determination as long as it is not unreasonable." Id. (emphasis in original); see also Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011); Anderson v. Trombley, 451 F. App'x 469, 474-75 (6th Cir. 2011). Therefore, as the Sixth Circuit went on to emphasize in Brown:
Brown, 567 F.3d at 205 (emphasis in original).
Applying the double-layer deferential standard to the case-at-hand, the undersigned is convinced that the Ohio Court of Appeals' sufficiency determination is neither contrary to nor an unreasonable application of Jackson. In petitioner's sole ground for relief, he claims that the prosecution failed to present sufficient evidence to find him guilty on a theory of complicity. Specifically, petitioner contends that there was insufficient evidence that he acted purposefully to facilitate the murder, burglary, and aggravated robbery, and to prove foreknowledge of the guns used by his codefendants. (See Doc. 1 at PageID 2). However, after review of the entire record, the undersigned finds that the Ohio courts reasonably determined that sufficient evidence was presented to sustain his convictions.
A conviction under Ohio's felony murder statute, Ohio Rev. Code § 2903.02(B), requires the prosecution to prove beyond a reasonable doubt that petitioner caused the death of another as a proximate result of committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04. The mens rea element for felony murder is established by the underlying, predicate offense. See State v. Fry, 926 N.E.2d 1239, 1253 (Ohio 2010) ("a person commits felony murder pursuant to R.C. 2903.02(B) by proximately causing another's death while possessing the mens rea element set forth in the underlying felony offense. In other words, the predicate offense contains the mens rea element for felony murder.").
Petitioner was charged with the underlying felonies of aggravated burglary and aggravated robbery under Ohio Rev. Code §§ 2911.11(A)(2) and 2911.01(A)(1), respectively. Aggravated burglary under § 2929.11(A)(2) states that "[n]o person, by force, stealth, or deception, shall trespass in an occupied structure . . . when another person other than an accomplice of the offender is present, with purpose to commit in the structure . . . any criminal offense" where "[t]he offender has a deadly weapon or dangerous ordinance on or about the offender's person or under the offender's control." The aggravated robbery statute states "[n]o person, in attempting or committing a theft offense . . . or in fleeing immediately after the attempt or offense shall . . . have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate the offender possess it, or use it." Ohio Rev. Code § 2911.01(A)(1). With respect to intent, "the deadly-weapon element of aggravated robbery in R.C. 2911.01(A)(1) does not require a mens rea . . . no intent beyond that required for the theft offense must be proven." Gipson v. Sheldon, 659 F. App'x 871, 878 (6th Cir. 2016) (quoting State v. Horner, 935 N.E.2d 26, 33 (Ohio 2010)).
Under Ohio law, petitioner could be convicted of a principal offense if he supported, assisted, encouraged, cooperated with, advised, or incited the principal in the commission of the crime and shares the criminal intent of the principal. See State v. Johnson, 754 N.E.2d 796, 801 (Ohio 2001). See also Ohio Rev. Code § 2923.03.
As noted by the Ohio Court of Appeals, the prosecution presented evidence that petitioner participated in the planning and execution of the robbery, which resulted in the shooting death of the victim. Misty Williams testified that on November 24, 2012, Williams, Frymire, Givens, Gooden, Lovell, and petitioner devised the plan to rob Julian Slaven while at petitioner's home. (Doc. 5-1, Transcript at PageID 276-77, 280-82). According to Williams, the plan was for Williams and Frymire to arrange to buy drugs from Slaven, before Givens, Gooden, and petitioner would rob him:
(Id. at 284-85).
(Id. at 296-97). Williams testified that petitioner never made it into the house, but was on his way to the front door when they fled Slaven's home and the group returned to petitioner's house. (Id. at 298, 300, 324). Williams further testified that Givens took a jar of marijuana from the home and that the drugs were distributed between petitioner, Goodin, and Givens. (Id. at 299-300, 302). As noted by the Ohio Court of Appeals and consistent with Williams' testimony, the prosecution presented evidence that at the approximate time of the robbery a text message was sent from Frymire's phone to a phone used by petitioner prior to the robbery and that a glass jar containing Given's fingerprints and Slaven's blood was recovered in a trash can behind petitioner's house. (Id. at PageID 502-506, 562-63, 569-70, 576-77).
Based on the above evidence, the undersigned finds that the Ohio Court of Appeals reasonably determined that petitioner's convictions were supported by sufficient evidence. Although petitioner contends insufficient evidence was offered to demonstrate foreknowledge of the use of a weapon, the plan to rob Slaven explicitly included the use of a gun in order to stage a "stickup" robbery. (See id. at 284-85). Based on the evidence that petitioner participated in the planning and execution of Slaven's robbery, a reasonable juror could conclude that petitioner had foreknowledge that a gun would be use in the commission of the robbery and was complicit in the offenses.
When viewing all of the evidence in the light most favorable to the prosecution, this Court concludes that the evidence was constitutionally sufficient to sustain petitioner's convictions. As the Ohio Court of Appeals reasonably determined, the prosecution offered sufficient evidence for a rational trier of fact to find that petitioner was complicit in the commission of the charged crimes. The Ohio Court of Appeals' adjudication of petitioner's sufficiency-of-evidence claims involved a reasonable application of the Jackson standard and was based on a reasonable determination of the facts in light of the evidence presented at trial. Petitioner is therefore not entitled to habeas relief based upon Ground One of the petition, his sole ground for relief.
The undersigned's opinion is not altered by petitioner's reliance on State v. Frymire, No. CA2014-02-034, 2015 WL 240483, *1 (Ohio App. Jan 20, 2015), the case one of petitioner's co-defendants. (See Doc. 13 at PageID 873-78). Frymire was charged under the same indictment as petitioner on a theory of complicity. After receiving initial written instructions, the jury submitted questions to the trial court, inquiring whether complicity required that the defendant know that a deadly weapon may be used prior to the offense. On appeal, Frymire challenged the trial court's response to the jury's questions. The Ohio Court of Appeals found that "without knowledge of the existence of the deadly weapon, Frymire could not possibly share the culpability required for the commission of aggravated burglary or aggravated robbery where possession of a deadly weapon was an essential element of those offenses." (Id. at PageID 876). The Ohio appeals court therefore found that "the trial court abused its discretion in instructing the jury that foreknowledge that a deadly weapon may be used in the commission of the offenses was not required." (Id. at PageID 877).
As argued by respondent, Frymire is distinguishable from the instant case because the trial court never provided the jury in petitioner's case with the erroneous instruction presented in Frymire.
Accordingly, in sum, the undersigned concludes that petitioner is not entitled to habeas relief. Having found that Ground One of the petition is without merit, the petition (Doc. 1) should be
1. Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be
2. A certificate of appealability should not issue with respect to the claims alleged in the petition, which have been addressed on the merits herein, because petitioner has not stated a "viable claim of the denial of a constitutional right," nor are the issues presented "adequate to deserve encouragement to proceed further." See Slack v. McDaniel, 529 U.S. 473, 475 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). See also 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
3. With respect to any application by petitioner to proceed on appeal in forma pauperis, the Court should certify pursuant to 28 U.S.C. § 1915(a)(3) that an appeal of any Order adopting this Report and Recommendation would not be taken in "good faith," and, therefore, should
Pursuant to Fed. R. Civ. P. 72(b),
Petitioner cites Musacchio v. United States, ___ U.S. ___, 136 S.Ct. 709 (2015), for the proposition that a sufficiency of evidence claim must be measured against the actual offense elements and not erroneous elements charged by a court. (See Doc. 13 at PageID 862). As discussed below, unlike the cases relied on by petitioner, the trial court in petitioner's case did not provide erroneous jury instructions in his case. Furthermore, even if the Ohio Supreme Court answered the proposed certified question in his favor, for the reasons stated below, a reasonable juror could have found that petitioner knowingly assisted in the robbery of Slaven, with the intent that a theft offense take place in Slaven's home and with foreknowledge that a gun would be used in the commission of the crime.
