JAMES R. KNEPP II, Magistrate Judge.
This is an action initiated by pro se Petitioner Malcolm Daniels, a prisoner in state custody, seeking a writ of habeas corpus under 28 U.S.C. § 2254 ("Petition"). (Doc. 1). Respondent Warden Terry Tibbals filed a Return of Writ (Doc. 11) with attached exhibits (Docs. 11-1; 11-2; 11-3; 11-4). Petitioner failed to respond to the Return of Writ. The district court has jurisdiction over the Petition under § 2254(a). This matter has been referred to the undersigned for a Report and Recommendation pursuant to Local Rule 72.2(b)(2). (Doc. 5). For the reasons discussed below, the undersigned recommends the Petition be denied and dismissed with prejudice.
For purposes of habeas corpus review of state court decisions, findings of fact made by a state court are presumed correct and can only be contravened if the habeas petitioner shows, by clear and convincing evidence, that the state court's factual findings were erroneous. 28 U.S.C § 2254(e)(1); Moore v. Mitchell, 708 F.3d 760, 775 (6th Cir. 2013); Mitzel v. Tate, 267 F.3d 524, 530 (6th Cir. 2001). This presumption of correctness applies to factual findings made by a state court of appeals based on the state trial record. Mitzel, 267 F.3d at 530. The Cuyahoga County Court of Appeals, Eighth District of Ohio, set forth the following findings of fact:
(Doc. 11-1, Tr. 7-10).
On February 17, 2009, a Cuyahoga County, Ohio grand jury indicted Petitioner on one non-capital felony Aggravated Murder charge (O.R.C. § 2903.01(A)) with two firearm specifications, one non-capital felony Aggravated Murder charge (O.R.C. § 2903.01(B)) with two firearm specifications, one first-degree felony Aggravated Robbery charge (O.R.C. § 2911.01(A)(1)) with two firearm specifications, one first-degree felony Aggravated Robbery charge (O.R.C. § 2911.01(A)(3)) with two firearm specifications, and one fourth-degree felony carrying a concealed weapon charge (O.R.C. § 2923.12(A)(2)). (Doc. 11-1, Tr. 18-21).
The offenses were prosecuted in Cuyahoga County Court of Common Pleas as Case No. CR-09-521106. Petitioner was represented by counsel throughout the trial court proceedings and he received the state's discovery prior to trial. (Doc. 11-1, Tr. 22). The case was tried by a jury and prior to deliberations, the jury was given instructions that included an instruction for a lesser included first-degree felony offense of Murder (O.R.C. § 2903.02(A)). (Doc. 11-4, Tr. 198-207).
On May 26, 2009, the jury found Petitioner guilty of all indicted charges and firearm specifications. (Doc. 11-4, Tr. 221-27). For sentencing purposes, the trial court merged all of the firearm specifications, the two Aggravated Murder convictions, and the two Aggravated Robbery convictions. (Doc. 11-4, Tr. 232, 257-58). On June 4, 2009, the trial court sentenced Petitioner to three years in prison for the firearm specification to be served prior to and consecutive with all other sentences, 25 years to life in prison for the Aggravated Murder conviction, five years in prison for the Aggravated Robbery conviction to be served concurrently with the Aggravated Murder sentence, and one year for Carrying a Concealed Weapon to be served concurrent with the Aggravated Murder and Aggravated Robbery sentences. (Doc. 11-4, Tr. 257-58). Petitioner's aggregate prison term is 28 years to life. (Doc. 11-1, Tr. 3).
On June 29, 2009, Petitioner timely filed a notice of appeal to Ohio's Eighth District Court of Appeals. (Doc. 11-1, Tr. 26). In his direct appeal, Petitioner's appointed counsel raised three assignments of error:
(Doc. 11-1, Tr. 45). The State filed a brief in opposition. (Doc. 11-1, Tr. 88). On August 19, 2010, the Eighth District Court of Appeals affirmed the judgment of the trial court in Case No. CA 93545. (Doc. 11-1, Tr. 5-17).
On September 16, 2010, Petitioner timely filed a pro se notice of appeal in the Ohio Supreme Court. (Doc. 11-1, Tr. 100). In his jurisdictional memorandum, Petitioner presented the following errors:
(Doc. 11-1, Tr. 102). The state did not file a response. On December 29, 2010, the Ohio Supreme Court denied Petitioner's leave to appeal and dismissed the appeal as not having any substantial constitutional question. (Doc. 11-1, Tr. 132). Petitioner did not file any post-conviction motions.
On January 3, 2012, Petitioner filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 asserting the following grounds for relief:
(Doc. 1)
Before seeking a federal writ of habeas corpus, a petitioner must exhaust available state remedies, "thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." 28 U.S.C. § 2254(b)(1)(A); Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275 (1971)). To exhaust the available state remedies, a petitioner must "invok[e] one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). If a petitioner fails to present a claim to the state courts and no state remedy remains available, he has procedurally defaulted that claim. See Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).
Further, the doctrine of procedural default bars federal habeas courts from reviewing federal claims state courts declined to address due to a petitioner's failure to comply with state procedural requirements. Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Procedural default occurs when the last state court rendering a decision makes a "plain statement" basing its judgment on a procedural bar. Harris v. Reed, 489 U.S. 255, 265 (1989). "The mere existence of a basis for a state procedural bar does not deprive [federal courts] of jurisdiction; the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case." Bowling v. Parker, 344 F.3d 487, 498 (6th Cir. 2003) (quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)); see also Coleman v. Thompson, 501 U.S. 722, 735 (1991) (holding the last state court rendering a reasoned judgment must "clearly and expressly" state its judgment rests on a procedural bar for procedural default to apply). Where a state court is silent as to its reason for denying a claim, the Sixth Circuit applies a presumption that the state court "would not have ignored its own procedural rules and would have enforced the procedural bar." Simpson v. Sparkman, 94 F.3d 199, 203 (6th Cir. 1996) (declining to interpret the state appellate court's silence as a decision on the merits of the petitioner's due process claim and instead assuming the court was enforcing the procedural bar) Id. at 203 n.1.
The Sixth Circuit applies a four-part test to determine whether a petitioner's grounds for relief are procedurally defaulted:
Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001) (citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986) (internal citations omitted)).
Petitioner's first ground for relief is an ineffective assistance of trial counsel claim. (Doc. 1, at 5). Petitioner alleges his trial counsel was ineffective because he did not file a motion to suppress his incriminating statement made to law enforcement or object to trial testimony regarding the same. (Doc. 1, at 5). However, despite having different counsel for appellate proceedings, Petitioner did not raise an ineffective assistance of trial counsel claim in his direct appeal to Ohio's Eight District Court of Appeals. (Doc. 11-1, Tr. 42). Although Petitioner challenged his incriminating statements in the state appellate court, his arguments were based on other legal theories — due process, fundamental fairness, and plain error. (Doc. 11-1, Tr. 42). After the state appellate court affirmed Petitioner's convictions and sentences, he tried to raise an ineffective assistance of trial counsel claim in the Ohio Supreme Court. (Doc. 11-1, Tr. 102). Because this claim was not raised in the state court of appeals, it was barred by the Ohio rule of res judicata. Lott v. Coyle, 261 F.3d 594, 611-612 (6th Cir.2001), cert. denied, 534 U.S. 1147 (2002); State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996) (syllabus); State v. Perry, 10 Ohio St.2d 175, 176, 226 N.E.2d 104, 105-106 (1967) (syllabus, ¶ 9). In effect, res judicata barred Petitioner from litigating an issue that could have been raised on direct appeal. Perry, 10 Ohio St.2d at 180, 226 N.E.2d at 108. Although Petitioner attempted to raise this claim in his appeal to the Supreme Court of Ohio (Doc. 11-1, Tr. 102), that court will not consider a constitutional question which was not raised and argued in the lower courts. See Leroy v. Marshall, 757 F.2d 94, 99 (6th Cir. 1985); Fornash v. Marshall, 686 F.2d 1179, 1185 n.7 (6
Likewise, Petitioner's second ground for relief is procedurally barred because he did not present it on direct appeal to the Ohio Eighth District Court of Appeals. In his direct appeal, Petitioner challenged his convictions arguing they were against the manifest weight of the evidence, which is separate and distinct from an evidence sufficiency claim. After the appellate court affirmed Petitioner's convictions and sentences, he raised an evidence sufficiency claim to the Ohio Supreme Court. Again, since Petitioner did not raise this claim his direct appeal, the Ohio Supreme Court's denial of his appeal is presumed to be dismissed due to Petitioner's failure to present the claim to the Eighth District Court of Appeals. Simpson, 94 F.3d at 203. Since Petitioner failed to show cause and prejudice for his default or that failure to consider the claim will result in a fundamental miscarriage of justice, his second ground for relief is procedurally barred from federal habeas review. See Coleman, 501 U.S. at 750; Murray, 477 U.S. at 485; Engle, 456 U.S. at 129; Sykes, 433 U.S. at 87.
Petitioner's third ground for relief pertains to the absence of a lesser included offense in the jury instructions. (Doc. 1, at 8). When Petitioner raised a similar issue in his direct appeal in state appellate court, he did not fairly present his claim as a federal constitutional right violation. Instead, Petitioner relied solely on state law authority and interpretations. If a state defendant fails to fairly present a federal constitutional claim to the state courts, he waives the claim for the purpose of federal habeas review. Weaver v. Foltz, 888 F.2d 1097, 1099 (6th Cir. 1989). This fair presentment requirement is strictly followed in the Sixth Circuit, to the point where catch-all allegations, such as a defendant claiming he was denied his constitutional right to a fair trial, when supported only by state law, does not fairly apprise the state court of a specific constitutional theory. Weaver, 888 F.3d at 1099. Likewise, the phrases "fair trial" and "due process", by themselves, "do not call to mind a specific right protected by the Constitution." Weaver, 888 F.3d at 1099 (citing Petrucelli v. Coombe, 735 F.2d 684, 688 (6th Cir. 1984)).
Because Petitioner failed to raise a constitutional violation in state court, he did not fairly presented his third asserted ground for relief to the state courts and this claim should be dismissed with prejudice.
Following review, the undersigned recommends the Court find Petitioner's claims procedurally defaulted and waived. Since there has been no demonstration of cause and prejudice, the Petition should be denied and dismissed with prejudice.
