REPORT AND RECOMMENDATION1

MICHAEL J. NEWMAN, Magistrate Judge.

Pursuant to 28 U.S.C. § 2254, Petitioner John Paul Weber, III ("Petitioner" or "Weber") brings this petition for a writ of habeas corpus. In April 2007, Petitioner was convicted of kidnapping, robbery, murder, tampering with evidence, and obstructing justice in the Montgomery County Court of Common Pleas. Doc. 5-1 at PageID 73. This matter is before the Court on Petitioner's habeas petition (doc. 1) and Respondent's Return of Writ (doc. 5), as supplemented by Respondent in response to this Court's Order (doc. 10).

Proceeding pro se, Petitioner pleads four grounds for relief:

Doc. 1 (brackets added).

I. FACTUAL BACKGROUND

On July 9, 2006, Dayton Police Officer Douglas Brandenburg found a man — whom he recognized as Myreon Mazur, nicknamed Chico ("Mazur") — in the grass outside a house on Quitman Avenue. Doc. 5-1 at PageID 178. Mazur told Officer Brandenburg that he was dying. Id. Mazur was transported to the hospital and pronounced dead shortly thereafter. Id. An autopsy revealed "abrasions and contusions on the face, left hand, and left shoulder," as well as "tears in his liver, small intestine, and pancreas as well as three broken ribs." Id. It was determined that "Mazur bled to death as result of those internal injuries, which were caused by blunt force trauma to the abdomen." Id. Over the course of an investigation, the police determined that multiple individuals were involved in the beating and death of Mazur, including Defendant. Id. at PageID 179.2

II. PROCEDURAL HISTORY

In August 2006, Petitioner and three co-defendants were indicted on multiple counts related to Mazur's beating and death. Doc. 5-1 at PageID 65-68. Petitioner moved to sever party defendants, and the trial court granted his motion. Id. at PageID 70-72.

Following a five-day trial in April 2007, the jury found Petitioner guilty of two counts of kidnapping, and one count each of robbery, murder, tampering with evidence, and obstructing justice. Id. at PageID 73. On May 3, 2007, Petitioner was sentenced to nineteen years to life imprisonment. Id.

A. Direct Appeal

With the assistance of counsel, Petitioner timely appealed his conviction and sentence, raising six assignments of error:

Id. at PageID 80 (citations omitted) (capitalization altered). The Ohio Court of Appeals overruled all of the assignments of error, affirming his conviction and sentence. State v. Weber, No. 22167 (Ohio Ct. App. 2d Dist. Aug. 8, 2008); Doc. 5-1 at PageID 177-91. Petitioner then filed a pro se motion for reconsideration in the Ohio Court of Appeals, doc. 5-1 at PageID 194-207, which was denied on February 2, 2009. State v. Weber, No. 22167 (Ohio Ct. App. 2d Dist. Feb. 2, 2009); Doc. 5-1 at PageID 208-10.

Petitioner timely appealed the Court of Appeals' decision to the Ohio Supreme Court, raising the same arguments that he did on direct appeal to the Ohio Court of Appeals. See doc. 5-1 at PageID 213-21. The Ohio Supreme Court declined to hear the appeal, finding it did not involve any substantial constitutional question. State v. Weber, No. 2008-1841 (Ohio Jan. 28, 2009); Doc. 5-1 at PAGED 237.3

The State concedes that all of Petitioner's habeas claims were properly exhausted in state court. See doc. 5 at PageID 37.

II. ANALYSIS

A. AEDPA Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), when the state court decides a federal constitutional claim on the merits, the federal habeas court must defer to the state court decision unless: (1) the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court"; or (2) the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d).

A state court decision is considered "contrary to . . . clearly established Federal law" when it is "diametrically different, opposite in character or nature, or mutually opposed." Nields v. Bradshaw, 482 F.3d 442, 449 (6th Cir. 2007) (citation omitted). To be deemed "an unreasonable application of . . . clearly established Federal law," a state court's decision must be "`objectively unreasonable,' not simply erroneous or incorrect." Cornwell v. Bradshaw, 559 F.3d 398, 405 (6th Cir. 2009) (citation omitted). Further, under 28 U.S.C. § 2254(e)(1), a state court's factual findings are presumed correct unless the petitioner rebuts them by clear and convincing evidence. Id. This statutory presumption of correctness also extends to factual findings made by state appellate courts' review of trial court records. Mason v. Mitchell, 320 F.3d 604, 614 (6th Cir. 2003).

A habeas court cannot review a constitutional claim on the merits unless the petitioner previously presented the claim to the state's highest court. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45, 848 (1999). Thus, if (1) the state court rejected the petitioner's claim based on his or her failure to comply with the state procedural rules, or (2) the petitioner failed to exhaust his or her state court remedies and no avenue of relief remains open, or it would otherwise be futile to pursue the state remedies, the petitioner has waived that claim for habeas review under the procedural default doctrine. In re Abdur'Rahman, 392 F.3d 174, 186-87 (6th Cir. 2004) (overruled on other grounds).

B. Ground One

In Ground One, Petitioner argues that his Sixth Amendment Confrontation Clause rights were violated. During Petitioner's criminal trial, Cynthia Ryan, a witness for the State, testified that she reviewed her grand jury testimony before trial to refresh her recollection. See doc. 5-3 at PageID 503-05. Petitioner's counsel then requested to view the grand jury transcript. See id. at PageID 506-12. In response to that request, the trial court conducted an in camera review of the transcript, and concluded that there were only minor inconsistencies between Ryan's trial testimony and her grand jury testimony. See id. Therefore, the trial court denied Petitioner's request. Id. at PageID 513-14. However, the trial court did permit Petitioner's counsel to cross-examine Ryan regarding a prior inconsistent statement she made to the police. Id. at PageID 514. Petitioner argues that, by so ruling, the trial court violated his right to confront witnesses.

On direct appeal, the Ohio Court of Appeals held that the trial court did not err in refusing to allow Petitioner's counsel to review Ryan's grand jury testimony. Doc. 5-1 at PageID181-83. Additionally, the Ohio Court of Appeals noted that — having found only trivial discrepancies in reading Ryan's grand jury testimony — any possible error was harmless. See doc. 5-1 at PageID 182-83.

To obtain habeas corpus relief, Petitioner must show that the state court's decision was "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Bobby v. Dixon, ___ U.S. ___, 132 S.Ct. 26, 27 (2011) (citation omitted). Accordingly, "[i]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the U.S. Supreme] Court." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786 (2011) (brackets added) (citation omitted).

The Confrontation Clause encompasses two rights: "the right physically to face those who testify against him, and the right to conduct cross-examination." Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). Here, Petitioner argues that the trial court violated the latter by denying him access to the grand jury testimony and thereby interfering with his ability to impeach a prosecution witness. See doc. 1 at PageID 5. "Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985). Indeed, the trial court has discretion to place reasonable limits on cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). A trial court's limitation on cross-examination violates the Confrontation Clause only when "[a] reasonable jury might have received a significantly different impression of [the witness'] credibility had . . . counsel been permitted to purse his proposed line of cross-examination." Id. at 680.

The Court is unaware, nor has either party cited to, Supreme Court case law suggesting that Petitioner's Confrontation Clause rights were violated during his trial.4 To the contrary, when facing similar facts, the Supreme Court, in a plurality opinion, declined to find a constitutional violation. See Ritchie, 480 U.S. at 53-54. There, a criminal defendant argued that his right of cross-examination was violated when a child protective service agency refused to comply with a subpoena and turn over its confidential records to him, claiming the records were privileged under state law. Id. at 43-46. The Supreme Court rejected the defendant's argument — that his confrontation rights were violated — stating, "[t]he ability to question adverse witnesses . . . does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony." Id. at 53. In so holding, the Court emphasized that the trial court had not restricted in any manner the counsel's opportunity to cross-examine all of the witnesses. See id. at 54.5

Likewise, the Sixth Circuit recently refused to grant habeas relief and find a Confrontation Clause violation under similar circumstances. See Middlebrooks v. Bell, 619 F.3d 526, 541-43 (6th Cir. 2010). In Middlebrooks, the trial court denied defendant's request to examine a witness' psychiatric hospital records for impeachment purposes, and also denied the request to conduct an in camera inspection of those records. Id. at 541. Defendant was given a full opportunity to cross-examine the witness, and was allowed to ask about the hospital records in question, however. Id. at 542. The Sixth Circuit held, "[i]t is clear . . . that for now there is no clearly established federal law indicating that the trial court's failure to order disclosure of [the witness'] hospital records violated [the defendant's] confrontation rights." Id. at 542-43. The court also emphasized that the defendant's trial counsel "received wide latitude to question" the witness. Id. at 543.

In light of the above-cited case law, the Court finds that Petitioner's Confrontation Clause rights were not violated. Petitioner's trial counsel was given a full opportunity to cross-examine Ryan. Doc. 5-3 at PageID 458-505. In fact, the trial court specifically allowed Petitioner's counsel to cross-examine Ryan regarding a prior inconsistent statement she made to the police. Id. at PageID 515-17.

Alternatively, the Court finds that Ground One fails because Petitioner cannot survive harmless error analysis — by showing that his inability to use the grand jury transcript to impeach Ryan had a "substantial and injurious effect or influence in determining the jury's verdict." Jordan v. Hurley, 397 F.3d 360, 363-64 (6th Cir. 2005). Having carefully reviewed Ryan's grand jury testimony and compared it to her trial testimony, compare doc. 10 at PageID 1360-72 with doc. 5-3 at PageID 433-517, the Court agrees with the assessment of the trial court and the Ohio Court of Appeals — that the discrepancies, if any, between Ryan's grand jury and trial testimony are trivial. See doc. 5-1 at PageID 183; doc. 5-3 at PageID 513-14.6 Further, Petitioner's trial counsel impeached Ryan on other grounds. See doc. 5-3 at PageID 515-17. Therefore, Petitioner's claim also fails under the harmless error analysis.

For the reasons stated above, the Court finds that Ground One should be dismissed.

C. Ground Two

In Ground Two, Petitioner contends that the trial court abused its discretion by failing to include jury instructions regarding intervening and superseding causes of death. See doc. 1 at PageID 6. He argues that the act of Shawn Taylor (another individual involved in the murder) — i.e., throwing a rock on Mazur — was a superseding cause of death, and the jury should have been instructed accordingly. See id.

To obtain habeas relief based on incorrect jury instructions, a petitioner must show that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72 (1991). The standard on habeas review is "highly demanding" — erroneous jury instructions violate "fundamental fairness" only in very narrow circumstances. Byrd v. Collins, 209 F.3d 486, 527 (6th Cir. 2000). Further, "[a]n omission, or an incomplete instruction, is less likely to be prejudiced than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155 (1977).

Upon a review of this claim, the Ohio Court of Appeals held that the trial court did not abuse its discretion in denying Petitioner's request to include a specific jury instruction on superseding and intervening causes. Doc. 5-1 at PageID 183-85. The Ohio Court of Appeals concluded that the jury instruction regarding proximate cause — (1) defining "cause" as "an act or failure to act which in the natural and continuous sequence directly produces the death and without which it would not have occurred" and (2) explaining that "[p]roximate result means that the death must be the direct natural reasonably foreseeable consequence of the defendant's conduct as opposed to an extraordinary or surprising consequence viewed in the light of ordinary experience" — adequately addressed intervening and superseding causes. See id. at PageID 184. Moreover, the Ohio Court of Appeals held that Petitioner's kidnapping and beating of the victim was, in fact, a proximate cause of Mazur's death, and a superseding and intervening cause instruction was therefore unwarranted. See id. at PageID 184-85.

The Court finds that the trial court's decision — to not expressly instruct the jury regarding superseding and intervening causes of death — was reasonable, and did not "so infect[] the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 72. Therefore, the state appellate court's decision — finding no constitutional violation in this regard — was neither contrary to nor an unreasonable application of Supreme Court precedent, and Ground Two should be dismissed.

D. Grounds Three and Four

Grounds Three and Four raise several insufficiency-of-the-evidence claims. In Ground Three, Petitioner argues there was insufficient evidence to support his kidnapping and felony murder convictions. Doc. 1 at PageID 8. In Ground Four, Petitioner argues that his obstructing justice conviction is likewise unsupported by sufficient evidence. Id. at PageID 9.

Under the Due Process Clause of the Fourteenth Amendment, a criminal conviction must be supported by sufficient evidence. See Jackson v. Virginia, 443 U.S. 307, 314-15 (1979). The test for constitutionally sufficient 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." Id. at 319. "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence and to draw reasonable inferences from basic facts to ultimate facts." Id. Moreover, under AEDPA deference, even where a habeas court concludes that the Jackson standard was not satisfied, it must still defer to the state appellate court's decision as long as it is reasonable. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009).

1. Kidnapping and Murder Convictions

The Ohio Court of Appeals rejected Petitioner's insufficiency-of-the-evidence challenges to his kidnapping and murder convictions as follows:

Doc. 5-1 at PageID 185-88.

As Petitioner has not rebutted the state court's factual findings with clear and convincing evidence, accord supra n. 1, AEDPA requires this Court to accept those findings as accurate. 28 U.S.C. § 2254(e)(1); Clark, 257 F.3d at 506. Based on the state court's recitation of evidence supporting Petitioner's kidnapping and felony murder convictions, the Court finds there was sufficient evidence for a rational trier of fact to conclude that he was guilty of those offenses.

Further, this Court has also independently reviewed the record, and is not persuaded otherwise. State witnesses testified that they saw Petitioner and Taylor physically force Mazur from the house on Quitman Avenue — by dragging and hitting him, while he was in a choke hold. See doc. 5-3 at PageID 443-44; doc. 5-4 at PageID 812-14. There was also testimony that Petitioner and Taylor inflicted serious physical harm on Mazur once they dragged him out of the house. See doc. 5-3 PageID 448-53, 580-81; doc. 5-4 at PageID 812-13. Thus, in light of such evidence, a rational jury could conclude that Petitioner was guilty of kidnapping under Ohio Rev. Code § 2905.01(A)(3) — for restraining the liberty of Mazur by force in order "to inflict serious physical harm" on him. Ohio Rev. Code § 2905.01(A)(3) (2006).

Similarly, there was sufficient evidence for a rational jury to conclude that Petitioner was guilty of kidnapping under Ohio Rev. Code § 2905.01(A)(2) — for restraining Mazur's liberty by force to facilitate the commission of a felony (robbery). Ohio Rev. Code § 2905.01(A)(2) (2006). First, there was eyewitness testimony that Mazur attempted to escape, but Petitioner and Taylor tackled him against a fence and would not allow him to leave — showing that Petitioner restrained Mazur's liberty by force. See doc. 5-3 at PageID 585; doc. 5-4 at PageID 926-27. Second, there was evidence that Petitioner did so in order to commit a robbery.7 Witnesses testified that, while Mazur was pinned against the fence, Petitioner and Taylor went through Mazur's pockets, took off his clothes, and stole his shoes. See doc. 5-3 at PageID 585-86; doc. 5-4 at PageID 482-83, 819, 743-44.

Additionally, Petitioner's contention that there was insufficient evidence to convict him of felony murder is unpersuasive. The jury reasonably concluded that Petitioner was guilty of kidnapping and his acts proximately caused Mazur's death. Thus, there was sufficient evidence to convict him of felony murder under Ohio Rev. Code § 2903.02(B).8

2. Obstructing Justice Conviction

Petitioner also challenges his obstructing evidence conviction. When law enforcement asked Petitioner to identify the individual that committed the crimes against Mazur in a photo spread, Petitioner falsely identified the wrong man. See doc. 5-1 at PageID 189-91. As a result, Petitioner was convicted of obstructing justice under Ohio Rev. Code § 2921.32(A)(5), which provides that "no person, with purpose to hinder the discovery, apprehension, prosecution, conviction, or punishment of another for crime . . . shall . . . [c]ommunicate false information to any person." Ohio Rev. Code § 2921.32(A)(5) (2006). In his habeas petition, Petitioner states that he made a mistake in misinforming the police, and therefore should not have been convicted of obstructing justice. Doc. 1 at PageID 9.

The Ohio Court of Appeals rejected Petitioner's claim as follows:

Weber was convicted of Obstructing Justice in violation of R.C. 2921.32(A)(5), which prohibits the communication of false information to law enforcement with a purpose to hinder the discovery, apprehension, prosecution, conviction, or punishment of another for a crime. See, also, State v. Bailey (1994), 71 Ohio St,3d 443, 448, 644 N.E.2d 314 (making an unsworn, false statement to a law enforcement officer with the purpose of hindering the officer's investigation of a crime is conduct that is punishable within the meaning of R.C. 2921.32(A)(5)).

Detectives first interviewed Weber the day after Mazur's death. During that interview, detectives showed him a photo spread that included Shawn Days, whom the police believed might have been the Shawn involved in these crimes. Weber knew Days and immediately incorrectly identified him as the Shawn in question. Subsequent conversations with Weber confirmed that he had not made a mistake, but that he was intentionally pointing police toward Days, who looked nothing like Taylor. With the help of other witnesses, police learned that it was Shawn Taylor that had been involved. Taylor lived directly across the street from Weber. The two men were known to be friends, and they were often seen together.

Doc. 5-1 at PageID 189-91 (brackets added).

Again, the Ohio Court of Appeals set forth factual findings, which are presumed to be correct, 28 U.S.C. § 2254(e)(1), adequately supporting Petitioner's obstructing justice conviction. Moreover, the Court's independent review of the record confirms that Detective Alan Burke — the investigator on the case — testified in detail how Petitioner falsely implicated Shawn Days as the one involved in Mazur's murder. See doc. 5-5 at PageID 1038-60. Based on Detective Burke's testimony and viewing the evidence in a light most favorable to the prosecution, the Court finds that a rational trier of fact could have found the elements of obstructing justice beyond a reasonable doubt. Jackson, 443 U.S. at 319.

In sum, under the Jackson standard, all of Petitioner's insufficiency-of-the-evidence claims fail. The Ohio Court of Appeals' decision was not contrary to, nor an unreasonably application of Supreme Court precedent. Grounds Three and Four should be dismissed.

IV. RECOMMENDATION

Based on the foregoing analysis, it is RECOMMENDED that Petitioner's § 2254 petition for a writ of habeas corpus be DISMISSED with prejudice and this case be TERMINATED on the Court's docket.

If Petitioner seeks to appeal, the Court RECOMMENDS that Petitioner be GRANTED a certificate of appealability on Ground One and leave to proceed in forma pauperis on appeal. While the Court is confident that Ground One has no merit, the facts underlying this claim are sufficiently unique that the Court believes the conclusion would be debatable among reasonable jurists and that an appeal of Ground One would be taken in good faith.

Reasonable jurists would not, however, disagree with the recommended dispositions on Grounds Two, Three, and Four. Therefore, the Court RECOMMENDS that Petitioner be DENIED a certificate of appealability on Grounds Two, Three and Four.

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within FOURTEEN days after being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to SEVENTEEN days because this Report is being served by one of the methods of service listed in Fed. R. Civ. P. 5(b)(2)(B)(C), or (D) and may be extended further by the Court on timely motion for an extension. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within FOURTEEN days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).