JONATHAN D. GREENBERG, Magistrate Judge.
This matter is before the undersigned pursuant to Local Rule 72.2. Before the Court is the Petition of Paul Croce ("Croce" or "Petitioner"), for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Croce is in the custody of the Ohio Department of Rehabilitation and Correction pursuant to journal entry of sentence in the case of State v. Croce, Cuyahoga County Court of Common Pleas Case No. CR-13-573312-A.
For the following reasons, the undersigned recommends the Petition be DISMISSED.
In a habeas corpus proceeding instituted by a person in custody pursuant to the judgment of a state court, factual determinations made by state courts are presumed correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012); Montgomery v. Bobby, 654 F.3d 668, 701 (6th Cir. 2011). The state appellate court summarized the facts underlying Croce's conviction as follows:
State v. Croce, 2014 WL 1513981 at * 1-3 (Ohio App. 8th Dist. April 17, 2014).
On April 17, 2013, a Cuyahoga County Grand Jury charged Croce with (1) one count of Aggravated Burglary in violation of Ohio Rev. Code ("O.R.C.") § 2911.11(A)(1) (Count One);
(2) one count of Aggravated Burglary in violation of O.R.C. § 2911.11(A)(2) (Count Two); (3) one count of Kidnapping in violation of O.R.C. § 2905.01(A)(2) (Count Three); (4) one count of Kidnapping in violation of O.R.C. § 2905.01(A)(4) with a sexual motivation specification pursuant to O.R.C. § 2941.147(A); (5) three counts of Rape in violation of O.R.C. § 2907.02(A)(2), each with a sexual motivation specification pursuant to O.R.C. § 2941.147(A) and a sexually violent predator specification pursuant to O.R.C. § 2941.148(A) (Counts Five, Six, and Seven); (6) one count of Felonious Assault in violation of O.R.C. § 2903.11(A)(1) (Count Eight); (7) one count of Aggravated Robbery in violation of O.R.C. § 2911.01(A)(1) (Count Nine); and (8) one count of Aggravated Robbery in violation of O.R.C. § 2911.01(A)(3) (Count Ten). (Doc. No. 10-1, Exh. 1.) Croce pled not guilty to all charges. (Doc. No. 10-1, Exh. 2.)
On June 25, 2013, Croce waived his right to a jury trial as to the Sexually Violent Predator specifications on the Rape Charges in Counts Five, Six, and Seven. (Doc. No. 10-1, Exh. 3.)
The case proceeded to jury trial commencing June 25, 2013. (Doc. No. 10-2.) Pursuant to Ohio Crim. R. 29, Croce moved for an acquittal at the close of the State's case, which the trial court denied. (Doc. No. 10-1, Exh. 4.) Croce renewed his Ohio Crim. R. 29 Motion for Acquittal after the defense rested and the state trial court again denied the motion. (Doc. No. 10-1, Exh. 5.) The jury found Croce guilty of the two Aggravated Burglary charges, the two Kidnapping charges with sexual motivation specifications, the three Rape charges with sexual motivation specifications, the Felonious Assault charge, and the two Aggravated Robbery charges. (Doc. No. 10-1, Exh. 6.) After a hearing, the trial court found Croce guilty of the sexually violent predator specifications attached to the three Rape convictions. (Doc. No. 10-1, Exh. 7.)
On July 23, 2013, after a sentencing hearing, the trial court merged the two Aggravated Burglary convictions with each other, merged the two Kidnapping convictions with each other and with one of the Rape convictions, and merged the two Aggravated Robbery convictions with each other. (Doc. No. 10-1, Exh. 7.) The trial court sentenced Croce to 10 years in prison for the Aggravated Burglary conviction; 10 years to life in prison on each Rape conviction; 8 years in prison for the Felonious Assault conviction; and 10 years in prison for the Aggravated Robbery conviction. (Id.) The trial court ordered the Rape sentences to be served concurrently with each other, but consecutive to the Aggravated Burglary, Felonious Assault, and Aggravated Robbery sentences, for an aggregate sentence of 38 years to life in prison. (Id.)
On August 13, 2013, Croce, through new counsel, filed a Notice of Appeal to the Court of Appeals for Eighth Appellate District ("state appellate court"). (Doc. No. 10-1, Exh. 8.) In his appellate brief, Croce raised the following six assignments of error:
(Doc. No. 10-1, Exh. 9.) The State filed a brief in response. (Doc. No. 10-1, Exh. 10.)
On April 17, 2014, the state appellate court affirmed Croce's convictions and sentence. (Doc. No. 10-1, Exh. 11.) See also State v. Croce, 2014 WL 1513981 (Ohio App. 8th Dist. April 17, 2014).
On May 21, 2014, Croce filed a Notice of Appeal to the Supreme Court of Ohio. (Doc. No. 10-1, Exh. 12.) In his jurisdictional memorandum, he raised the following Propositions of Law:
III. Consecutive Sentences.
(Id.) The State did not file a response.
On September 3, 2014, the Supreme Court of Ohio declined to accept jurisdiction of the appeal pursuant to S. Ct. Prac. R. 7.08(B)(4). (Doc. No. 10-1, Exh. 13.)
On July 22, 2015,
(Doc. No. 1-2.) Respondent filed her Return of Writ on December 9, 2015. (Doc. No. 10.) Croce filed his Traverse on February 29, 2016, to which Respondent replied on March 14, 2016. (Doc. Nos. 18, 19.)
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 326-27, 337, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The relevant provisions of AEDPA state:
28 U.S.C. § 2254(d) (1996).
Clearly established federal law is to be determined by the holdings (as opposed to the dicta) of the United States Supreme Court. See Parker v. Matthews, 567 U.S. 37, 132 S.Ct. 2148, 2155, 183 L.Ed.2d 32 (2012); Renico v Lett, 559 U.S. 766, 130 S.Ct. 1855, 1865-1866 (2010); Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Shimel v. Warren, 838 F.3d 685, 695 (2016); Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir. 2005). Indeed, the Supreme Court has indicated that circuit precedent does not constitute "clearly established Federal law, as determined by the Supreme Court." Parker, 132 S.Ct. at 2155. See also Lopez v. Smith, ___ U.S. ____, 135 S.Ct. 1, 4, 190 L.Ed.2d 1 (2014) (per curiam) ("Circuit precedent cannot `refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has not announced.'" (quoting Marshall v. Rodgers, ___ U.S. ____, 133 S.Ct. 1446, 1450, 185 L.Ed.2d 540 (2013))).
A state court's decision is contrary to clearly established federal law "if 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." Williams v. Taylor, 529 U.S. at 413. By contrast, a state court's decision involves an unreasonable application of clearly established federal law "if 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. See also Shimel, 838 F.3d at 695. However, a federal district court may not find a state court's decision unreasonable "simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly." Williams v. Taylor, 529 U.S. at 411. Rather, a federal district court must determine whether the state court's decision constituted an objectively unreasonable application of federal law. Id. at 410-12. "This standard generally requires that federal courts defer to state-court decisions." Strickland v. Pitcher, 162 Fed. Appx. 511, 516 (6th Cir. 2006) (citing Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998)).
In Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), the Supreme Court held that as long as "fairminded jurists could disagree on the correctness of the state court's decision," relief is precluded under the AEDPA. Id. at 786 (internal quotation marks omitted). The Court admonished that a reviewing court may not "treat[ ] the reasonableness question as a test of its confidence in the result it would reach under de novo review," and that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. at 785. The Court noted that Section 2254(d) "reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems" and does not function as a "substitute for ordinary error correction through appeal." Id. (internal quotation marks omitted). Therefore, a petitioner "must show that the state court's ruling . . . 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. This is a very high standard, which the Supreme Court readily acknowledged. See id. at 786 ("If this standard is difficult to meet, that is because it is meant to be.")
In Ground One of his Petition, Croce argues his conviction is against the manifest weight of the evidence because "the record does not contain the requisite evidence which to show that [he] broke into the victim's house and raped her." (Doc. No. 1-2 at 7.) Respondent asserts this claim should be dismissed because it is not cognizable in federal habeas proceedings. (Doc. No.10.) Respondent also argues that, even if this claim were construed as challenging the sufficiency of the evidence, the state appellate court's sufficiency determination was not contrary to or an unreasonable application of clearly established Supreme Court precedent. (Id. at 18.)
Croce's manifest weight of the evidence claim is rejected on the grounds that such claims are not cognizable on federal habeas review.
As Respondent correctly notes, the Petition does not assert a sufficiency of the evidence claim. However, even if the Court were to liberally construe Croce's pro se Petition as raising such a claim, the Court finds it to be without merit. On direct appeal, Croce argued both that the evidence was insufficient to sustain a conviction, and that his convictions were against the manifest weight of the evidence. (Doc. No. 10-1, Exh. 9.) The state appellate court considered these claims together and rejected them, as follows:
State v. Croce, 2014 WL 1513981 at * 3-4.
Respondent argues "the state court reasonably applied the correct review standard derived from Jackson and did not act contrary to clearly established Supreme Court precedent." (Doc. No. 10 at 19.) She further maintains "it was objectively reasonable for the fact-finder and reviewing appellate court to conclude that there was sufficient evidence to convict Croce."
A petitioner who claims that the evidence at trial was insufficient for a conviction must demonstrate that, "after viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See also Scott v. Mitchell, 209 F.3d 854, 885 (6th Cir. 2000). The role of the reviewing court in considering such a claim is limited:
Matthews v. Abramajtys, 319 F.3d 780, 788-89 (6th Cir. 2003) (internal citations omitted). Moreover, it is well established that `"attacks on witness credibility are simply challenges to the quality of the government's evidence and not to the sufficiency of the evidence.'" Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002) (quoting United States v. Adamo, 742 F.2d 927, 935 (6th Cir.1984)).
Consistent with these principles, the Supreme Court has emphasized that habeas courts must review sufficiency of the evidence claims with "double deference:"
Coleman v. Johnson, 566 U.S. 650, 132 S.Ct. 2060, 2062, 182 L.Ed.2d 978 (2012). Under this standard, "we cannot rely simply upon our own personal conceptions of what evidentiary showings would be sufficient to convince us of the petitioner's guilt," nor can "[w]e . . . inquire whether any rational trier of fact would conclude that petitioner . . . is guilty of the offenses with which he is charged." Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). Rather, a habeas court must confine its review to determining whether the state court "was unreasonable in its conclusion that a rational trier of fact could find [petitioner] guilty beyond a reasonable doubt based on the evidence introduced at trial." Id. (emphasis in original) (citing Knowles, 129 S.Ct. at 1420.
Upon careful review of the trial transcript, the Court finds Croce's conviction is supported by substantial evidence. In resolving this claim, the state appellate court accurately summarized the evidence of record and correctly identified the applicable law. As noted in the state appellate court decision, the victim, Virginia Oravis, testified that, on the night of July 19, 2006, she went to sleep at approximately 10 p.m. and was awakened by the sound of her bathroom window being opened. (Doc. No. 10-3, Tr. 330-331, 335.) The lights were off and it was dark. (Id. at Tr. 335-336.) She asked "who are you?" and a man standing in her hallway said "Steve." (Id. at Tr. 331.) The man pushed Ms. Oravis onto the bed and threw a pillow on her face. (Id. at Tr. 336.) Ms. Oravis testified the man took her underwear off, put something sharp on her neck, called her a bitch, and told her he would slit her throat if she made a sound. (Id. at Tr. 336-337) He then punched her on her left cheek and she "actually saw stars." (Id. at Tr. 337) Ms. Oravis testified the man put his penis in her mouth and vagina, and inserted his finger in her anus. (Id. at Tr. 338.)
At one point, she told the man she could not breathe because of the pillow on her face, and he replaced it with a blanket. (Id. at Tr. 339.) She could not see his face, but she smelled tobacco. (Id.) Ms. Oravis testified the man tried to kiss her on her mouth and used his tongue to kiss her breasts. (Id. at Tr. 340; Doc. No. 10-4 at Tr. 397-398.) When he was finished, the man emptied her purse and took $2.00. (Doc. No. 10-3 at Tr. 341.) Ms. Oravis heard the front door open and the man was gone. (Doc. No. 10-4 at Tr. 346.)
After the man left, Ms. Oravis testified she got out of bed, put on clean underwear, and went into the bathroom. (Id. at Tr. 347.) She noticed the screen on her bathroom window had been cut. (Id. at Tr. 349.) After using the toilet, she called the police and told them she had been raped. (Id. at Tr. 351.) The police arrived shortly thereafter and collected evidence, took photographs, and dusted for fingerprints. (Id. at Tr. 351-352.) She was transported by EMS to Marymount Hospital, where she was told her cheekbone had been fractured. (Id. at Tr. 352-353.) A rape kit was completed and photographs were taken of her injuries. (Id. at Tr. 353-355.) Ms. Oravis testified that, later, she made a statement to the police recounting the assault. (Id. at Tr. 355.) She told police she did not know who the intruder was and had never seen him before. (Id.) Some time later, police showed her photographs of various men, but she did not recognize any of them as her assailant. (Id. at Tr. 359-360.)
The State then presented the testimony of registered nurse Michelle Schreiber. Nurse Schreiber testified she was a trained Sexual Assault Nurse Examiner ("SANE") nurse at Marymount Hospital at the time of the assault, and that she examined Ms. Oravis at approximately 4:45 a.m. on the morning of July 19, 2006. (Doc. No. 10-4 at Tr. 429-430, 433-437.) Nurse Schreiber described her initial assessment of Ms. Oravis as follows: "I saw a very upset woman with a black eye and tearful, a little disheveled." (Id. at 438.) She stated Ms. Oravis had bruising and swelling to her left cheek and eye; abrasions on the left side of her neck; and bruises on her left upper arm. (Id. at Tr. 438-439.) Ms. Oravis reported a man had put his penis and finger into her vagina; put his finger in her anus; orally raped her; and fondled and licked her breasts and neck. (Id. at Tr. 442-443.) Nurse Schreiber took photographs of Ms. Oravis' injuries, which she authenticated at trial. (Id. at Tr. 450.) She testified she conducted a SANE examination of Ms. Oravis, which included taking oral, vaginal, and anal swabs. (Id. at Tr. 447.) Nurse Schreiber also testified she took "dry stain swabs" of Ms. Oravis's neck and breasts because the assailant had licked her there. (Id. at Tr. 448, 452.) Nurse Schreiber stated that, throughout the examination, Ms. Oravis was tearful, but alert and coherent, clear in her answers, and not disoriented. (Id. at Tr. 453, 459.)
Ohio Bureau of Criminal Investigation forensic scientist David Niemeyer then testified regarding the DNA analysis of Ms. Oravis' rape kit. (Id. at Tr. 461, 467-479.) He stated no semen was found in either the vaginal, anal, or oral samples. (Id. at Tr. 470.) Mr. Niemeyer indicated no seminal fluid was detected in the "dry stain swabs" of Ms. Oravis' right and left breasts, and neck; however, a substance called amylase was identified in these samples. (Id.) Mr. Niemeyer explained amylase was found in saliva, and DNA can be extracted from saliva. (Id. at Tr. 470-471.) He then testified the DNA profiles of swabs from Ms. Oravis' breasts and neck were similar mixtures from Ms. Oravis and an unknown male. (Id. at Tr. 474.) Mr. Niemeyer further testified as follows:
(Id. at Tr. 478-479.)
The State next presented the testimony of Cleveland Police officer Stephen Zedella. Officer Zedella was a patrol officer during the summer of 2006 and responded to Ms. Oravis' home during the early morning hours of July 19, 2006. (Id. at Tr. 495, 498-499.) Officer Zedella testified that, when he arrived at the scene, Ms. Oravis had "a lot of swelling to the left side of her face," and was very upset and crying. (Id. at Tr. 500.) He stated Ms. Oravis reported she had been raped and assaulted. (Id.) She described the suspect as a white male, approximately 40 years old, 6 feet tall with short brown hair, and wearing knee length shorts. (Id. at Tr. 501.) Officer Zedella noticed the screen was cut on the bathroom window and the contents of Ms. Oravis' purse were "strewn about" the floor. (Id. at Tr. 502-503.) Officer Zedella immediately called for EMS, a supervisor, and a scientific investigation unit. (Id. at Tr. 503.) He testified he did not see any footprints on the aluminum siding of the house near the bathroom window, nor did he see any imprint of a ladder, step stool, or bicycle in the grass.
(Id. at Tr. 516-517.)
Cleveland Police Detective Keith Hunter testified he took a statement from Ms. Oravis several weeks later. (Id. at Tr. 531, 534.) The case was open but unsolved for "awhile," but they eventually got an "investigative lead" regarding Paul Croce in the form of the DNA match from the dry stain swabs of Ms. Oravis's breasts and neck. (Id. at Tr. 539, 542-543, 549.) A photo array containing a picture of Croce was presented to Ms. Oravis, but she was not able to identify anyone as the assailant. (Id. at Tr. 540-541.) Detective Hunter testified he arrested Croce and interviewed him at the police station in 2013. (Id. at Tr. 543-544.) Croce allowed Hunter to collect a DNA sample. (Id. at Tr. 544.) He admitted he had lived not far from Ms. Oravis' home in July 2006, but denied knowing her or knowing anybody who lived on Canton Avenue. (Id. at Tr. 545-548.) Croce stated he had been with "older women," but stated he did not know how his DNA would have gotten on Ms. Oravis and indicated it must not be his DNA. (Id. at Tr. 550.) He denied breaking into Ms. Oravis' home or committing any crime. (Id. at Tr. 548, 550.) On cross examination, Detective Hunter acknowledged he did not show Croce a picture of Ms. Oravis during the interview. (Id. at Tr. 566-568.)
Croce testified in his own defense. On direct examination, he acknowledged he had been convicted of several criminal offenses, including safecracking, burglary, attempted breaking and entering, disorderly conduct, and driving under suspension. (Doc. No. 10-5 at Tr. 587-588.) He stated he had pled guilty to these offenses, and served two prison terms. (Id.) Croce acknowledged that, when Detective Hunter asked him if he knew Ms. Oravis, he answered no. (Id. at Tr. 591-592.) However, Croce testified he did, in fact, know Ms. Oravis and just had not recalled her name when he was interviewed by Detective Hunter in 2013. (Id.) Croce testified that, in 2006, he and Ms. Oravis were "somewhat friends." (Id. at Tr. 592.) He knew her because he used to pass her house every night coming home from a nearby bar, and often saw her working in her yard.
Croce testified Ms. Oravis became upset and started yelling at him to get out of her house. (Id. at Tr. 600.) Croce stated he started walking out but tripped and fell into Ms. Oravis and they both hit the wall. (Id.) He testified Ms. Oravis screamed, and he left and never saw her again. (Id. at 600-601, 605, 625-626.) Croce denied cutting Ms. Oravis' bathroom window screen or going through her window. (Id. at Tr. 601-604.) He denied threatening her, raping her, or committing any crime against her. (Id. at Tr. 606-607, 610.) Croce stated he only became aware of who Ms. Oravis was when his defense counsel showed him a picture of her a few weeks before trial.
The Court finds the state appellate court reasonably determined Croce's convictions are supported by substantial evidence. Ms. Oravis testified a man entered her home through the bathroom window, shoved her on the bed, covered her face with pillow, held a knife to her throat, threatened to kill her if she screamed, punched in her the face, raped her repeatedly, and stole money from her purse. Nurse Schreiber testified Ms. Oravis was upset and crying when she arrived at the ER, and presented with several injuries including bruising and swelling on her left cheek and eye, abrasions on the left side of her neck, and bruises on her left upper arm. Forensic scientist David Niemeyer testified DNA analysis of the "dry stain" swabs of Ms. Oravis' neck and breasts revealed Croce could not be ruled out as a contributor. Mr. Niemeyer further explained "in order to see this profile in the population you need to test 202 quadrillion, 300 trillion unrelated individuals in order to see this profile one time." (Doc. No. 10-4 at Tr. 478-479.)
While Croce argues the jury should have acquitted him on the basis of his testimony at trial, the credibility of witnesses' testimony was outside the scope of the state appellate court's consideration of Croce's claim of insufficient evidence. Martin, 280 F.3d at 618. Rather, the state appellate court properly considered all of the evidence in the light most favorable to the State and determined there was sufficient evidence to convict him of aggravated burglary, kidnapping, felonious assault, rape, and aggravated robbery. The state appellate court properly applied the correct standard of review for sufficiency of the evidence as set forth in Jackson. Croce points to no federal legal precedent requiring the state appellate court, in the context of a challenge to the sufficiency of the evidence, to engage in the evidence weighing that he requests.
Accordingly, the Court finds the state appellate court reasonably applied clearly established federal law when it rejected Croce's argument that there was insufficient evidence to support his convictions. It is therefore recommended Croce's First Ground for Relief be denied.
As Grounds Two and Three are related, the Court will address them together. In his Second Ground for Relief, Croce argues he was deprived of a fair trial when the trial court failed to give specific jury instructions regarding his prior convictions. (Doc. No. 1-2 at 9.) In his Third Ground for Relief, Croce maintains defense counsel was ineffective in failing to request jury instructions regarding this issue. (Id. at 10.)
The record reflects that, while the state trial court gave a general instruction to the jury regarding assessing the credibility of witnesses,
Croce raised his Second and Third Grounds for Relief on direct appeal. (Doc. No. 10-1, Exh. 9.) The state appellate court rejected them as follows:
State v. Croce, 2014 WL 1513981 at *4-5. Croce timely appealed and raised these claims to the Ohio Supreme Court, which declined jurisdiction. (Doc. No. 10-1, Exh. 12.)
The Court will address each of these grounds separately, below.
In his Second Ground, Croce argues he was deprived of a fair trial when the trial court failed to give specific jury instructions regarding his prior convictions. (Doc. No. 1-2 at 9.) He maintains his due process rights were violated because "[h]is prior criminal history was not used for sentencing purposes, but was erroneously used by the jury to assume that since Croce had a prior criminal record, he is also guilty of these offenses." (Doc. No. 18 at 4.) He argues "[t]his is a clear violation of Croce's rights to due process and a fair trial protected by Federal (and State) Constitutional rights." (Id. at 4-5.)
Respondent asserts this ground is non-cognizable to the extent it alleges a violation of state law. (Doc. No. 10 at 20.) She then emphasizes Croce's failure to request a limiting instruction and argues, summarily, "the state appellate court's plain error review constituted enforcement of Ohio's contemporaneous objection rule and is a valid reason to preclude § 2254 habeas review and relief because Croce has not established cause and actual prejudice, or a manifest injustice to excuse his procedural default." (Id.)
As set forth above, the state appellate court determined the trial court did not err in failing to specifically instruct the jury regarding Croce's prior convictions, citing Ohio Supreme Court authority that trial courts are not required to sua sponte give a limiting instruction on the use of other acts evidence because counsel's decision not the request a limiting instruction "is sometimes a tactical one." Croce, 2014 WL 1513981 at * 4.
Generally, "errors in instructions of a trial court to a jury in a state criminal trial are not reviewable in federal habeas corpus proceedings . . . unless they are so fundamentally unfair as to deprive petitioner of a fair trial and to due process of law." Long v. Smith, 663 F.2d 18, 23 (6th Cir. 1981)). See also Herrington v. Lazaroff, 2015 WL 3687681 at * 29-30 (N.D. Ohio June 11, 2015). As the Sixth Circuit recently explained in Wade v. Timmerman-Cooper, 785 F.3d 1059 (6
Wade, 785 F.3d at 1077-1078.
Here, the Court need not decide whether to apply AEDPA deference or conduct a de novo review of the state appellate court decision on this issue because, under either standard, Croce's argument is without merit.
In sum, Croce has not shown that the failure to give a limiting instruction regarding his prior convictions rendered his trial fundamentally unfair. This is especially true in light of the Supreme Court's recognition that "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977). See also Wade, 785 F.3d at 1079. Furthermore, this decision "comports with recent holdings by the Supreme Court and [the Sixth Circuit] establishing that a defense counsel's failure to request—or a trial court's failure to give—even an appropriate limiting instruction will not require reversal where other evidence in the record supports conviction." Wade, 785 F.3d at 1079. Here, and as discussed in connection with Croce's First Ground for Relief, the state presented sufficient evidence to support Croce's convictions.
Accordingly, and in light of the above, it is recommended Croce's Second Ground for Relief be denied.
In his Third Ground for Relief, Croce maintains defense counsel was ineffective in failing to request a limiting instruction regarding his prior convictions. (Doc. No. 1-2 at 10.) He argues he was severely prejudiced by counsel's failure to so, maintaining as follows:
(Doc. No. 18 at 4-5.)
In assessing claims of ineffective assistance of counsel, courts apply the familiar standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1998), which requires a petitioner to demonstrate both that his counsel's performance was deficient, and that the allegedly ineffective assistance caused him prejudice:
Strickland, 466 U.S. at 687.
Where, as here, a state court correctly identifies Strickland as the standard for assessing a petitioner's ineffective assistance claim, in order for the petitioner to receive habeas relief, the state court's ruling must be an unreasonable application of the Strickland standard. Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009) ("The question is not whether a federal court believes the state court's determination under Strickland was incorrect but whether that determination was unreasonable—a substantially higher threshold.") (internal quotation marks omitted). When reviewing a state court's ruling on an ineffective assistance of counsel claim, federal habeas courts must employ "a `doubly deferential' standard of review that gives both the state court and the defense attorney the benefit of the doubt." Burt v. Titlow, ___ U.S. ____, 134 S.Ct. 10, 13, 187 L.Ed.2d 348 (2013); see also Cullen v. Pinholster, 563 U.S. 170, 131 S.Ct. 1388, 1403, 179 L.Ed.2d 557 (2011) ("Our review of the [state court's] decision is thus doubly deferential. We take a highly deferential look at counsel's performance through the deferential lens of § 2254(d).") (internal citations and quotation marks omitted).
The United States Supreme Court has emphasized that, in determining whether counsel performed deficiently under Strickland, "[w]e begin with the premise that `under the circumstances, the challenged action[s] might be considered sound trial strategy." Pinholster, 131 S.Ct. at 1404 (quoting Strickland, 466 U.S. at 689). Indeed, Strickland commands reviewing courts to "affirmatively entertain the range of possible `reasons [defense] counsel may have had for proceeding as they did,'" Pinholster, 131 S.Ct. at 1407, and "indulge [the] strong presumption" that counsel "made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 689-90, 692.
Respondent asserts the state appellate court reasonably determined defense counsel was not ineffective for failing to request a limiting instruction regarding Croce's prior convictions. (Doc. No. 10.) For the following reasons, the Court agrees.
Federal courts have consistently determined that a decision by counsel not to request a limiting instruction can be a sound tactical decision not to emphasize the prior conviction before the jury. See e.g., Ashe v. Jones, 2000 WL 263342 at *6 (6th Cir. Feb. 29, 2000) (stating that counsel may have decided, as part of a reasonable trial strategy, not to request an instruction limiting the jury's consideration of the prior bad acts evidence based on the belief that such an instruction would bring undue attention to the other acts); Ferguson v. Knight, 809 F.2d 1239, 1243 (6th Cir.1987) (limiting instructions "inevitably invite the jury's attention to matters the defendant normally prefers not to emphasize"); Stamps v. Rees, 834 F.2d 1269, 1276 (6th Cir.1987) (failure to request jury admonition concerning permissible use of evidence of prior convictions did not constitute ineffective assistance "as it is quite evident that . . . counsel simply wanted to get past the prior convictions as quickly as possible without bringing undue attention to them"); Robins v. Fortner, 698 F.3d 317, 337-338 (6th Cir. 2012) (finding no ineffectiveness because counsel "may have . . . made a tactical choice not to provide curative jury instructions to avoid drawing further attention to the fact that the pictures were mug shots"). Thus, many federal habeas courts have rejected claims of ineffective assistance of trial counsel based on counsel's failure to request limiting instructions relating to evidence of prior bad acts. See Martin v. Wilson, 419 F.Supp.2d 976, fn 7 (N.D. Ohio 2006) (finding counsel was not ineffective for failing to request a limiting instruction regarding prior conviction because "it was reasonable trial strategy to avoid calling any further attention to this prior conviction which was only briefly mentioned at trial"); Smith v. Howerton, 2015 WL 5749440 at * 23-24 (E.D. Tenn. Sept. 30, 2015); Towle v. Warren, 2014 WL 2879752 at * 14 (E.D. Mich. June 24, 2014); Martin v. Rivard, 2013 WL 5902624 at * 9 (E.D. Mich. Oct. 31, 2013); Barnes v. Bradshaw, 2012 WL 2905816 at * 28 (N.D. Ohio June 7, 2012). Indeed, the Sixth Circuit has noted "the vast majority of courts hearing ineffective assistance claims based on failure to request a limiting instruction have determined that no prejudice resulted from counsel's failures."
The Court finds the state appellate court reasonably concluded, pursuant to Strickland, that counsel's failure to request limiting instructions regarding Croce's prior convictions did not constitute ineffective assistance of counsel. As the state appellate court noted, counsel's failure to request such an instruction may have constituted a tactical decision. While defense counsel elicited testimony from Croce regarding his prior convictions on direct examination, it is not unreasonable to conclude she may have decided not to request a limiting instruction in order to avoid drawing further negative attention to Croce's prior criminal history.
Moreover, assuming arguendo counsel's decision not to request a limiting instruction rose to the level of deficient performance, Croce has failed to show a reasonable probability that, but for counsel's error, the outcome of trial would have been different. As explained above, the State presented sufficient evidence upon which the jury could have found Croce guilty as charged in the indictment, including Ms. Oravis' testimony; DNA evidence linking Croce to the victim on the night of the assault; and Nurse Schreiber's and Officer Zedella's testimony Ms. Oravis was upset and crying and presented with multiple injuries, including abrasions to her neck (which would not have been accounted for by Croce's testimony). In addition, the jury was also presented with evidence that Croce changed his story; i.e., he denied knowing Ms. Oravis when interviewed by Detective Hunter but testified at trial that he, in fact, knew Ms. Oravis and had consensual physical contact with her on the night of the assault. Finally, the jury could have concluded, as the state appellate court suggested, that "if the victim was framing Croce for spurning her advances, surely she would have told the officers who her assailant was." State v. Croce, 2014 WL 1513981 at *4-5. As noted supra, evidence of Croce's prior convictions was not the critical factor in the case against him. Rather, the crux of the State's case rested upon Ms. Oravis' testimony, her injuries, the DNA evidence, the testimony of the nurse involved in treating her, and the testimony of the police officers investigating the case. Accordingly, even if counsel was deficient in failing to request a limiting instruction, Croce has not demonstrated the state appellate court was unreasonable in determining he failed to show prejudice under the second prong of Strickland.
In sum, while it may have been preferable for counsel to request an instruction limiting the jury's consideration of Croce's prior convictions, "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Burger v. Kemp, 483 U.S. 776, 789, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). A review of counsel's performance must be highly deferential and requires the Court to "indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Monzo v. Edwards, 281 F.3d 568, 579 (6
It is therefore recommended Croce's Third Ground for Relief be denied.
In his Fourth (and final) Ground for Relief, Croce argues the "trial court erred by ordered [him] to serve consecutive sentences without due process of appropriate findings required by statute." (Doc. No. 1-2.) He maintains as follows:
(Doc. No. 18 at 6.)
Croce raised this claim on direct appeal. (Doc. No. 10-1, Exh. 9.) The state appellate court rejected it as follows:
State v. Croce, 2014 WL 1513981 at * 6. Croce timely appealed and raised this claim to the Ohio Supreme Court, which declined jurisdiction. (Doc. No. 10-1, Exh. 12.)
Addressing the merits, Respondent argues that, to the extent Croce raises a sentencing claim under state law, such a claim is non-cognizable in federal habeas proceedings. (Doc. No. 10.) To the extent Croce is attacking his sentence on federal constitutional grounds, Respondent argues that any such claim, whether based on due process or the Eighth Amendment, is without merit because a sentence imposed within the statutory maximum (such as Croce's) generally does not raise a federal constitutional claim. (Id.)
To the extent Ground Four asserts a violation of Ohio law, the Court agrees with Respondent that it is not cognizable on federal habeas review. It is well-established that, in conducting habeas review, "a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). As such, the Supreme Court has explained "it is not the province of a federal habeas court to reexamine state-court decisions on state-law questions." Id. at 67-68. See also Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007); Coleman v. Mitchell, 244 F.3d 533, 542 (6th Cir. 2001). Indeed, courts have consistently found that a habeas petitioner cannot challenge the interpretation and application of Ohio's sentencing laws, as "a state court's interpretation and application of Ohio's sentencing laws is not cognizable in a federal habeas corpus action." Rettig v. Jefferys, 557 F.Supp.2d 830, 838 (N.D. Ohio 2007) (citing Howard v. White, 2003 WL 22146139, at *2 (6th Cir. 2003)). See also Ruffin v. Lazaroff, 2016 WL 7974123 at * 6 (N.D. Ohio Nov. 1, 2016); Linde v. Turner, 2016 WL 1275729 at * 8 (N.D. Ohio March 4, 2016); Rossbach v. Turner, 2015 WL 3953063 at * 10 (N.D. Ohio June 29, 2015).
The Court also rejects Croce's argument that the imposition of consecutive sentences violated his due process rights. Croce has not asserted his sentence falls outside the statutory range. Courts have consistently held that "[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir.1992); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 S.Ct. 1690 (1948) ("The sentence being within the limits set by the statute, its severity would not be grounds for relief here even on direct review of the conviction, much less on review of the state court's denial of habeas corpus."); accord Kerr v. Smith, 2009 WL 88054 at *15 (N.D. Ohio Jan.12, 2009) ("Claims which arise out of a state trial court's sentencing decision are not generally cognizable upon federal habeas review, unless the habeas petitioner can show that the sentence imposed exceeded the statutory limits or is wholly unauthorized by law.") (quoting Lucey v. Lavigne, 185 F.Supp.2d 741, 745 (E.D. Mich.2001)). See also Rossbach v. Turner, 2015 WL 3953063 at * 3 (N.D. Ohio June 9, 2015) ("It is well settled that a sentence that falls within the penalty set by statute normally does not violate the United States Constitution."); Glenn v. Coleman, 2014 WL 4983661 at * 20 (N.D. Ohio Oct. 6, 2014). Here, Croce has not asserted or demonstrated that the trial court exceeded the maximum sentences authorized when it imposed consecutive sentences. See also Rossbach, 2015 WL 3953063 at * 3 ("Additionally, judges in Ohio have discretion to order that sentences run consecutively"); Nunez v. Brunsman, 886 F.Supp.2d 765, 770 (S.D. Ohio 2012) (finding that the imposition of consecutive sentences does not violate due process); Hoffman v. Tribley, 2013 WL 1137353 at * 2 (E.D. Mich. March 19, 2013).
Moreover, the Court rejects Croce's argument that the imposition of consecutive sentences was disproportionate; i.e., that "the punishment did not fit the crime." (Doc. No. 18 at 6.) A claim that a sentence is unconstitutional because it is "grossly disproportionate" is generally construed as alleging a violation of the Eighth Amendment. It does not appear Croce fairly presented an Eighth Amendment claim to the state courts. Nonetheless, any such claim is without merit. The Supreme Court has determined that strict proportionality is not required between a crime and its punishment. Harmelin v. Michigan, 501 U.S. 957, 959-960, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). See also United States v. Marks, 209 F.3d 577, 583 (6th Cir. 2000); Thomas v. Berghuis, 2015 WL 5313636 at * 5 (6th Cir. Sept. 10, 2015) ("There is also no constitutional right to strict proportionality in sentencing"). Interpreting this "narrow proportionality principle," the Sixth Circuit has held "only an extreme disparity between crime and sentence offends the Eighth Amendment." Marks, 209 F.3d at 583. Consequently, "[a] sentence within the maximum set by statute generally does not constitute `cruel and unusual punishment.'" Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000) (citing United States v. Organek, 65 F.3d 60, 62 (6th Cir.1995)). See also Thomas, 2015 WL 5313636 at * 5 ("A sentence at or below the statutory maximum does not normally constitute cruel and unusual punishment." ) As Croce's sentence fell within the statutory range, the Court finds it is not "extreme" or "grossly disproportionate" to the offenses he committed. See Thompson v. Williams, 685 F.Supp.2d 712, 728 (N.D. Ohio 2010); Morrison v. Warden, Richland Correctional Institution, 2015 WL 7295432 at * 10 (S.D. Ohio Nov. 19, 2015); Glenn, 2014 WL 4983661 at * fn 16.
Accordingly, and for all the reasons set forth above, it is recommended that Ground Four be denied.
For all the reasons set forth above, it is recommended the Petition be DISMISSED.
